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Tuesday, September 29, 2015

Is the "don't blame the drug war for mass incarceration" counter-narrative problematically incomplete?

As more serious folks have started to take the problem of modern mass incarceration more seriously, I see a couple key narratives about the problem and potential solutions emerging. The predominant narrative, espoused by Michelle Alexander in The New Jim Crow and by long-time critics of the so-called "war on drugs," is that mass incarceration is principally a product of the drug war and its associated severe sentencing laws. This narrative always struck me as a bit too simplistic and incomplete.

Lately an important counter-narrative has taken hold: fueled by prison population data and prosecutorial practices stressed by John Pfaff and a few others, more folks are asserting that the drug war and its severe sentencing laws are not central to mass incarceration and that their reversal is not really a solution to the problems of mass incarceration. This counter-narrative is today well-explained in this New York Times column by David Brooks. Here are highlights:

Pretty much everybody from Barack Obama to Carly Fiorina seems to agree that far too many Americans are stuck behind bars. And pretty much everybody seems to have the same explanation for how this destructive era of mass incarceration came about.

First, the war on drugs got out of control, meaning that many nonviolent people wound up in prison. Second, mandatory­minimum sentencing laws led to a throw­-away-­the-­key culture, with long, cruel and pointlessly destructive prison terms....

The popular explanation for how we got here, however, seems to be largely wrong, and most of the policy responses flowing from it may therefore be inappropriate. The drug war is not even close to being the primary driver behind the sharp rise in incarceration. About 90 percent of America’s prisoners are held in state institutions. Only 17 percent of these inmates are in for a drug­-related offense, or less than one in five.

Moreover, the share of people imprisoned for drug offenses is dropping sharply, down by 22 percent between 2006 and 2011. Writing in Slate, Leon Neyfakh emphasized that if you released every drug offender from state prison today, you’d reduce the population only to 1.2 million from 1.5 million.

The war on drugs does not explain the rocketing rates of incarceration, and ending that war, wise or not, will not solve this problem. The mandatory-­minimum theory is also problematic. Experts differ on this, but some of the most sophisticated work with the best data sets has been done by John Pfaff of Fordham Law School....

His research suggests that while it’s true that lawmakers passed a lot of measures calling for long prison sentences, if you look at how much time inmates actually served, not much has changed over the past few decades. Roughly half of all prisoners have prison terms in the range of two to three years, and only 10 percent serve more than seven years. The laws look punitive, but the time served hasn’t increased, and so harsh laws are not the main driver behind mass incarceration, either.

So what does explain it? Pfaff’s theory is that it’s the prosecutors. District attorneys and their assistants have gotten a lot more aggressive in bringing felony charges. Twenty years ago they brought felony charges against about one in three arrestees. Now it’s something like two in three. That produces a lot more plea bargains and a lot more prison terms.

I asked Pfaff why prosecutors are more aggressive. He’s heard theories. Maybe they are more political and they want to show toughness to raise their profile to impress voters if they run for future office. Maybe the police are bringing stronger cases. Additionally, prosecutors are usually paid by the county but prisons by the state, so prosecutors tend not to have to worry about the financial costs of what they do.

Pfaff says there’s little evidence so far to prove any of these theories, since the prosecutorial world is largely a black box. He also points out that we have a radically decentralized array of prosecutors, with some elected and some appointed. Changing their behavior cannot be done with one quick fix.

Some politicians and activists suggest that solving this problem will be easy — just release the pot smokers and the low­-level dealers. In reality, reducing mass incarceration means releasing a lot of once-­violent offenders. That may be the right thing to do in individual cases, but it’s a knotty problem.

Generally speaking, the "don't blame the drug war for mass incarceration" counter-narrative makes important points and is an essential consideration for serious researchers and reform advocates. Pfaff's data highlights critical factual realities that fully justify the essential message that modern mass incarceration is, in Brooks' phrase, a "knotty problem."

But I fear that the counter-narrative is also too simplistic and incomplete as it fails to consider sufficiently how the the drug war and associated sentencing laws remain at the beating heart of the mass incarceration knot. In my view, federal and state prosecutors were only able to become "more aggressive" in recent decades because the drug war and associated severe sentencing laws made their jobs much, much easier in various ways. The relative simplicity of securing drug convictions (and of threatening severe sanctions for those who fail to plea and cooperate) has made it much, much easier for prosecutors to turn more arrests for drugs and many other crimes into many more charges and convictions. (Tempered constitutional limitations on police, prosecutors and severe sentences through the Rehnquist Supreme Court era is also a part of this story, which I also think can and should be linked directly to the drug war.)

This chart has charging data for the federal system from 1982 to 2010, and it shows federal the number criminal cases commenced (i.e., when federal prosecutors brough charges) doubling from under 33,000 in 1982 to 67,000 in 2002. During those two decades, the number of drug cases commenced jumped from 4,200 in 1982 to over 19,000 in 2002. In my view, the drug war and severe federal sentences not only significantly accounted for why federal prosecutors had the ability/resources to bring 15,000 more drug cases in 2002 than in 1982, but it also significantly contributed to why federal prosecutors had the ability/resources to bring 15,000 more other federal criminal cases in 2002 compared to 1982. I think we would see somewhat similar dynamics playing out in many states during this period, and the federal data further shows that once prosecutors got really good at bringing lots of charges thanks to the help of the drug war, they became consistently adept at bringing lots more of other charges even as the number of drug prosecutions started to level off.

I make these points not to contend that "ending the drug war" (whatever that means) and/or repealing all mandatory minimums will alone "solve" the problem of mass incarceration. The counter-narrative remains very important in highlighting that modern incarceration levels in the US are a complicated matter requiring complicated solutions. But I am now growing concerned that, especially as the counter-narrative grows in significance, serious researchers and reform advocates may sometimes under-appreciate how critical the drug war and associated sentencing laws have been as the source of many troublesome elements in the growth of criminal justice expenditures and significance over the last four decades.

Speaker John Boehner, who rose from bartender's son to the most powerful man in Congress, will retire at the end of October, ending a tumultuous five-year tenure atop the House of Representatives.

Boehner, 65, planned to leave Congress at the end of 2014, one of his aides said Friday morning, but returned because of the unexpected defeat of Eric Cantor.

"The Speaker believes putting members through prolonged leadership turmoil would do irreparable damage to the institution," the Boehner aide said. "He is proud of what this majority has accomplished, and his speakership, but for the good of the Republican Conference and the institution, he will resign the Speakership and his seat in Congress, effective October 30."...

Boehner came into power on the power of the 2010 tea party wave, but it was that movement that gave him the most problems. Boehner's tenure will be remembered for his internal political battles, but also his complicated relationship with President Barack Obama. He and Obama tried — but repeatedly failed — to cut a deal on a massive fiscal agreement. But Boehner has had some significant victories, including the free-trade deal that Congress passed this year, and changes to entitlement systems....

Boehner's decision, relayed in a closed Republican meeting Friday morning, will set off one of the most intense leadership scrambles in modern Congressional GOP politics. Second in line is House Majority Leader Kevin McCarthy (R-Calif.), who is widely expected to serve as the next speaker. But there is serious unrest in the House Republican ranks, as a small clutch of conservatives have continuously clashed with more establishment Republican types. But it is unclear if any of these figures can win a leadership election.

Of course, the easy answer to the hard question in the title of this post is "it depends." As regular readers know, the younger, more conservative and libertarian-leaning members of Congress within the GOP have generally been more supportive of federal sentencing reform than older establishment GOP officials. Thus, I think the prospects for federal sentencing reform could grow a bit brighter with new blood in the speaker seat.

Then again, any power struggle for leadership positions in the House is almost sure to take time and attention away from other legislative duties. And diverted attention likely means any existing and future federal sentencing reform bills will have a hard time getting to and through a full vote in the House (and perhaps also the Senate).

This new commentary authored by J. Douglas McCullough and Eric Evenson, two former North Carolina federal prosecutors, makes notable arguments against reform of federal drug sentencing statutes. The piece is headlined "Keep drug sentencing laws to keep communities safe," and here are excerpts:

The U.S. Senate is finalizing a criminal reform bill that will alter federal drug trafficking laws. Changes center on the mandatory minimum sentencing requirements which have been a key part of federal laws for more than 30 years. As former federal prosecutors, with more than 40 years combined experience, we have seen first-hand the benefits of mandatory minimum sentencing when properly used as a tool in the fight against drug traffickers. We urge Congress to leave this tool intact.

Many of our drug laws were passed by Congress in the 1980s, in response to a growing drug epidemic. These laws, which included mandatory sentences based on drug quantity and criminal history, were part of reform designed to rescue cities from the grip of drug traffickers and the danger it caused to our most vulnerable citizens. Congress correctly recognized that this goal could only be accomplished if sentences were tough for those controlling the distribution of drugs. Incentives were created for lower-level participants to provide evidence against higher-level traffickers in the form of a companion reward for testimony against other traffickers. Tough sentences were designed to remove the worst offenders from our communities; the opportunity to provide evidence in return for a lower sentence mitigated the effect of those sentences for those willing to help investigators get to the leaders of the drug organizations.

In our own district (which include cities, as well as rural areas) we saw crime rates decline, neighborhoods were revitalized, and violence was reduced. As we interviewed hundreds of drug traffickers who decided to provide testimony against higher-level traffickers, they revealed they were motivated to do so in large part by the significant sentences they faced.

Without tough sentencing standards for traffickers, we could not have obtained their testimony and obtained convictions against the large-scale traffickers. We saw our work as a “war on drug traffickers” with the goal of elimination of the traffickers from our communities. We sought cooperation and made appropriate recommendations for lower sentences for those who provided truthful testimony against major traffickers. We viewed the drug users as “victims” of drug traffickers. Drug trafficking produces two things: addicts, with ruined lives, and illegal profits for major drug traffickers.

The vast majority of drug traffickers — those we brought to federal court — were not drug users. They sold drugs because of greed. They were sentenced because of their large-scale distribution, and/or for the use of firearms as part of their activities. Those who argue that federal prisons are full of low-level drug users are simply wrong.

Drug trafficking spawns many other types of crime: gun violence, murder, theft, prostitution, and more. When a drug trafficker sets up his stronghold in a neighborhood, the whole community feels the effects. Many of the community’s most vulnerable citizens — those with limited means — can’t leave their crime-infested areas. They become trapped in the hellish world created by the drug traffickers....

Opponents of mandatory sentencing claim that these sentences are racist, unfair and expensive. That is not true. Mandatory sentencing has helped to rescue communities of color from drug traffickers; mandatory sentencing is equally applied to all drug traffickers, regardless of race, gender and economic status; and, the cost of long prison sentences is minor when compared to the lives saved and the communities rescued as the result of their imposition.

Instead of eliminating mandatory prison terms, why not institute meaningful reforms that will get to the root cause of drug trafficking? The majority of incarcerated drug traffickers we have interviewed were younger men who were the product of fatherless homes. The father is the first example of law and order for a young man. The breakdown of family has done more to lead to our drug epidemic than perhaps any other single cause.

Let’s focus on the causes of family breakdown, and the resulting failure to teach/instill good character in our young people. Public schools could offer character instruction. Religious institutions must be involved in teaching character and family/parental skills. For those serving long sentences, there should be an opportunity for rehabilitation, and to earn sentence reduction. Prisoners need to be taught work skills and character development that was largely overlooked in their earlier years.

Weakening our federal sentencing laws against drug trafficking, though frequently well intended, is naïve, counterproductive, and will adversely affect the communities to which drug traffickers will more quickly return.

Intriguingly, while making the case for preserving federal drug mandatory minimum statutes, these former prosecutors are also making the case for some of the back-end reforms currently being considered by Congress when they advocate for federal prisoners having an "opportunity for rehabilitation, and to earn sentence reduction." Also, I find it interesting that these authors assert that the breakdown of the family best accounts for drug problems and yet they do not acknowledge the role of the drug war in contributing to family disruptions.

Thursday, September 10, 2015

The question in the title of this post is prompted by this notable lengthy new TPM piece sent to me by a helpful reader and headlined "How Donald Trump Threatens To Blow Up Bipartisan Criminal Justice Reform." Here are excerpts:    

A long-awaited, hard-fought criminal justice reform push is coming to Washington this fall, with lawmakers of both parties making progress on legislation to curb mass incarceration. But after spending years convincing lawmakers that tackling the issue of mass incarceration would not make America more dangerous or put their political careers in jeopardy, advocates are now watching with growing dread as the GOP primary veers back toward the usual tough on crime rhetoric.

Just a few months ago, reformers were celebrating that most of the 2016 GOP pack had signaled that, at least in theory, they supported retooling America's justice system. But, as has been the case with so many other sensitive issues, the entrance of Donald Trump has changed the dynamic. Now instead of talking about criminal justice reform, the GOP primary contenders are warning of a supposed nationwide crime spike, touting the mandatory-minimums in "Kate’s Law," and lobbing “soft on crime" accusations.

“I’m concerned about the impact on the push for justice reform because we’re expecting a bill at some point this month,” Jason Pye, director of Justice Reform at the conservative FreedomWorks, told TPM. “I’m concerned about the impact of the rhetoric on that.”

Trump may not solely be to blame for the shift in tone. But in interviews with TPM before his entrance in to the race, justice reform advocates expressed cautious optimism that the GOP field had more or less coalesced around curbing mass incarceration, and they believed it was unlikely to become a flashpoint in the primary.

Trump may have conflated the issue, they now contend, by linking illegal immigration and violent crime, thus prompting many of his rivals to take harder lines, too. Coupled with warnings of a summer crime spike, the campaign trail has taken a turn back to the ‘90s, with candidates falling into old patterns of invoking crime fears to rile their constituencies.

“For the most part these candidates aren’t talking about these issues right now, it’s largely focused one person and we know who that person is, for better or for worse,” said Pye of FreedomWorks, the major DC advocacy outfit with Tea Party roots that plays an important role in pushing criminal justice reform from the right....

Last week, Trump released an ad attacking former Gov. Jeb Bush that critics said echoed the notorious Willie Horton ad that Bush's father used against Michael Dukakis in the 1988 presidential race. The ad flashes the mugshots of undocumented immigrants charged or convicted of murder over Jeb Bush's infamous immigration is an "act of love" comments, and ends with placards saying "Love? Forget Love. It's Time Get Tough!" Bush's spokesperson responded by calling Trump a "soft on crime liberal."

“They look like tweedledum and tweedle dumber in terms of this very retro style of exploiting these old arguments,” liberal justice reform leader Van Jones said in an interview with TPM last week, referring to the Trump and Bush spat.

Meanwhile, conservatives have taken a harsh line on Black Lives Matter, a movement that includes calls for overhauling law enforcement and justice policies. Led by Fox News, conservatives have accused the protest movement, without basis, of inciting violence against police officers. Trump accused Black Lives Matter this week of "looking for trouble” and suggested they were being "catered to" by Democrats.

The rhetoric has spread beyond Trump, which is of particular concern to criminal justice reform advocates. A few high-profile police deaths have prompted candidates like Sen. Ted Cruz (R-TX) and Wisconsin Gov. Scott Walker (R) to blame the Obama administration for, as Walker put it, “a tendency to use law enforcement as a scapegoat.” New Jersey Gov. Chris Christie (R) has called for the return of stop and frisk, vowed to crack down on marijuana legalization, and blamed “liberal-leaning mayors and cities” and their “lax criminal justice policies” for the stabbing death of a former intern in Washington, D.C.

“There are two things that are troubling,” said Inimai Chettiar, director of Justice at the Brennan Center. “One, that people are saying that there is a crime wave now and they’re implying that crime is going to be going up as a permanent trajectory -- which is wrong -- and that second people are blaming criminal justice policies and particularly policing policies for this.”...

Already, balancing the various concerns of those interest groups was a delicate dance for lawmakers hammering out federal legislation. But heated campaign claims -- be it about Black Lives Matter, undocumented immigrants or police fatalities -- isn’t helping to smooth over tensions....

Nevertheless, Senate advocates for reform insist legislative progress can be made despite the campaign trail rhetoric. “There’s been heated rhetoric for decades around justice reform,” said Ben Marter, a spokesman for Sen. Dick Durbin (D-IL), who is involved in crafting the anticipated compromise bill. “But the senators negotiating this legislation have put their partisan differences aside to negotiate a solution in good faith.”

Likewise, advocates are hopeful the most ardent justice reformers in the GOP field will resist relying on such language. “I would get worried if suddenly other candidates less desperate and flailing than Governor Bush started jumping on that bandwagon,” Jones said.

But the proposal known as Kate’s Law shows how easily legislative progress can be undercut by the kind of the knee-jerk reactions to sensationalized tragedies that contributed to the creation of mass incarceration policies in the first place. The legislation, inspired by Steinle's murder, would impose mandatory sentencing minimums on undocumented immigrants who return to U.S. after being deported and, according to Families Against Mandatory Minimums, would add nearly 60,000 people to the federal prison population.

Trump has made Steinle’s murder a focal point of his campaign (despite the desires of her family), and conservative media have fanned the flames. Cruz -- who has previously touted his interest in criminal justice reform -- has embraced the measure, while other candidates have also expressed support. So far, cooler heads in Congress have prevented Kate’s Law from gaining traction there. “Watching Kate’s Law unfold is like watching history repeat itself,” FAMM government affairs counsel Molly Gill told TPM, comparing it to 1986 drug overdose by college basketball star Len Bias that led to federal mandatory drug sentencing. “We’ve come a long way in the last 30 years in our understand of crime and recidivism and using evidence-based approaches. But a lot of times we’re still legislating like that never happened."

​For years, criminal justice reformers have labored to convince politicians that dismantling ‘80s and ‘90s era crime legislation -- through cutbacks on mandatory minimums or softening of drug laws -- will not making them look “soft on crime.” The best proof they had was the success of a number of state lawmakers -- especially in red states -- in curbing mass incarceration without facing political consequences. They have also had to do this working within a tenuous coalition balancing competing priorities. “With consensus around criminal justice reform from both sides of the aisle that hasn’t been seen for a generation, it would be a shame for presidential candidates to undermine this by exploiting negative imagery and stereotypes for mere political gain,” said Janai Nelson, associate director-counsel of the NAACP Legal Defense and Educational Fund, in a statement to TPM.

Tuesday, September 08, 2015

Highlighting headwinds for federal sentencing reform in coming critical period

Over at Crime & Consequences, Bill Otis has this extended new post headlined "The Biggest Obstacles Right Now to Sentencing 'Reform'." The post provides a five-point account of recent developments enhancing the (always uphill) battle for significant federal sentencing reform, and here is how the post gets started:

From late spring through about the end of July, it was my sense that some kind of fairly significant sentencing "reform" bill was going to make more headway in this Congress than in the last, and conceivably could pass. More members of the majority party had expressed an openness to it than we had seen in the last Congress.

Probably the first sign of trouble was when the sentencing "reform" bill that had been promised before the August recess never showed up. I expect that one (or several) will show up now, but their content and their prospects for passage seem diminished from what they had been just six weeks ago.

As a former DOJ political appointee, Bill Otis has long been much more of an inside-the-Beltway player than I ever will ever be, and I surmise he still has considerable connections with establishment GOP leaders in Congress. Consequently, his latest prognostications here strike me as important as we all anticipate Senator Charles Grassley unveiling, perhaps as early as today as previewed here, a (big?) new sentencing reform bill that may be the one most likely to have a real chance to get to the President's desk in some form.

Even though Bill's sentencing analysis is sometime subject to sharp criticism (as recently noted here), I think his posts about sentencing reform arguments and prospects alway provide a useful reminder of how many different kinds of political and policy arguments can be made against changing the status-quo of tough-and-tougher sentencing. Most fundamentally, when crime is in decline, Bill and others will be quick to say we should not risk changing what seems to be working; when crime seems to be spiking, Bill and others will be quick to say we should not risk going soft now.

Thursday, September 03, 2015

Julie Stewart of FAMM goes hard after Bill Otis for being "proven wrong time and time again"

Regular readers know I often note and express respect for the work and writings of both former federal prosecutor Bill Otis, who now writes most regularly at Crime & Consequences, and Julie Stewart, who is the President and Founder of Families Against Mandatory Minimums. Today I must note and express amazement at the concerted efforts of one of these two taking on the other: Julie Stewart has this notable new Reason commentary headlined "The Former Prosecutor Who Consistently Gets Criminal Justice Reform Wrong: Former prosecutor Bill Otis has been mistaken over and over again when advising legislators against reducing drug sentences." Here are excerpts mostly from the start and end of the piece:

No one expects our elected representatives to be experts in every area of public policy. At the same time, we have every right to expect that our representatives will consult policy analysts and experts who know what they're talking about, not someone who has been proven wrong time and time again. In the world of criminal justice, that someone is former federal prosecutor and Georgetown Law adjunct William Otis.

Over the past two decades, Bill Otis has become the Paul Ehrlich of criminal sentencing reform. He is always certain in his convictions and nearly always wrong. Moreover, like Ehrlich, Otis likes to scare the public with predictions of certain and impending doom, and he is immune to feelings of embarrassment or humiliation despite being proven spectacularly wrong over and over again....

[W]hereas Ehrlich saw overpopulation as the culprit, Otis thinks shortening sentences for nonviolent drug offenders will be America's undoing. Indeed, every time Congress or the U.S. Sentencing Commission has considered even mild sentence reductions over the past two decades, Otis has gone full Chicken Little. He has been wrong every time....

The nationwide drop in crime and prison crowding should be celebrated. Less violent crime means fewer murder victims, fewer robbery victims, and fewer assault victims. Smaller prison populations means savings for taxpayers and more money to spend on what actually does reduce crime — community policing and supervision practices like "short, swift, and certain." None of these gratifying results would have been possible if Otis's theory were correct — or if any lawmakers outside the Beltway had heard of Otis and took his views seriously. While Otis has been consistently wrong, thankfully lawmakers have ignored him....

Committed to his prison-is-always-the-answer ideology, Otis derided the [Fair Sentencing Act], saying it should be called the "Crack Dealers Relief Act." When the U.S. Sentencing Commission lowered the crack guideline and made it retroactive in accord with the FSA, Otis predicted it would lead to an increase in crime.... On his blog, Otis cranked up the fear machine. He predicted "misery" when "thousands of crack dealers" would be "put back on the street prematurely" to terrorize their communities.

Fortunately for those of us concerned about public safety, Otis was wrong again — amazingly wrong. Since passage of the FSA, the crime rate, the prison population, and crack usage are all down! It bears repeating. Otis said the changes would cause "misery" and "inevitably lead to more crime." Instead, while thousands of offenders have received fairer sentences, the crime rate has fallen, crack use is down, and taxpayers have saved millions from being wasted on unnecessary prison costs....

Otis is impervious to facts and evidence. He will quote Professor Steven Levitt's finding that greater reliance on incarceration helped reduce crime in the 1990s and then ignore Levitt's later conclusion that the country has gone too far and that prisons should reduce their populations by one-third. Otis will say, as he does in National Review, that the movement for sentencing reform "is strictly interest-group — and billionaire — driven, inside-the-Beltway," which would be fine if you did not already know that the reform movement began in the states and is being promoted in Washington, DC by insiders like Senators Ted Cruz (R-Tx.), Rand Paul (R-Ky.), and Mike Lee (R-Utah).

Otis's amazing record of wrongness would be interesting and perhaps even funny if he, like fellow fear-peddler Paul Ehrlich, were exiled from the world of rational public policy making. But media reports have suggested that some members of Congress actually listen to Otis. If that's true, then we really do have a good reason to be scared.

Yowsa. Because I consider both Julie Stewart and Bill Otis to be personal friends, I am going to be trying hard to stay out of this sentencing sparring. But I am also going to try to report fairly on any rounds of this fight, and thus will be quick to post any response that Bill Otis provides in his own defense in the days ahead.

UPDATE: Bill Otis has a response up at Crime & Consequences: Are Sentencing "Reformers" Getting Worried?. Here is a snippet from Bill's introduction to his brief substantive refutation of points made by Julie Stewart:

I think it unbecoming and unwise to get caught up in this sort of thing. If you hold a controversial position, you can expect some heat. And if you spend all your time answering your critics, you'll never do anything else. You'll certainly abandon any hope of making your own points. Accordingly, with the exceptions noted below, I am not going to engage with Ms. Stewart. (If she seeks a live debate with me, that would be another matter).

I'm quite sure she is sincere. But, for reasons stated in hundreds of things I have said on this blog and elsewhere, I believe she is in error.

Tuesday, September 01, 2015

As regular readers know, September is the month that a (long-forecast) important new federal sentencing reform bill has become likely to emerge from the US Senate. This new Daily Signal article, headlined "Bipartisan Group of Senators Set to Announce Deal to Reduce Prison Population," which reports that this bill is going to be unveiled a week from today, provides an account of what we can expect to see in this bill. Here are excerpts:

Soon after lawmakers return to Washington, D.C., on Sept. 8, a bipartisan group of members on the Senate Judiciary Committee is expected to announce a deal meant to relieve the overcrowded federal prison population.

The bill, which is still being written and near completion — according to Beth Levine, a spokeswoman for Judiciary Committee Chairman Chuck Grassley — would give judges more discretion in sentencing offenders of certain nonviolent drug crimes and let well-behaved inmates earn time off their prison terms.

“They want to announce a deal as soon as they get back, but they just aren’t quite there yet,” says Conn Carroll, the communications director for Sen. Mike Lee, a committee member and leading reform advocate. “Let’s just say it’s first and goal on the one, everyone thinks we’ll score, we just don’t know when,” Carroll continued.

The legislation, the result of months of negotiations, will likely incorporate policies from previously introduced legislation in both houses of Congress.

The judiciary committee’s compromise bill is not expected to include reductions to mandatory minimums that are blamed for mass incarceration. Mandatory minimums require binding prison terms of a particular length and prevent judges from using their discretion to apply punishment. But the legislation is expected to give judges some leeway in sentencing drug offenders....

A new Pew study, using data from the Federal Bureau of Prisons, reveals that there are more than 207,000 inmates in federal prisons, and 95,000 of those inmates are incarcerated for drug-related offenses — up from fewer than 5,000 in 1980.

The jump in the number of inmates has cost a lot of money. From 1980 to 2013, federal prison spending increased 595 percent, from $970 million to more than $6.7 billion. According to the study, prison spending now represents one of every four dollars spent by the U.S. Justice Department. The report says growth of the prison population, and the longer drug sentences, can be pinned on a tough-on-crime mentality that dominated the 1980s.

Reform advocates say these policies — such as laws passed by Congress enacting mandatory minimum sentences of five, 10, or 20 years for drug offenders, and abolishing parole for federal offenders — have outlived their usefulness and need to be revised.

“The question really boils down to, has Sen. Grassley come to recognize mandatory minimums are a policy failure?” says Alison Holcomb, the director of the ACLU’s Campaign for Smart Justice. “Whether the bill is worth all the time and effort of the negotiations depends on a large part to the answer to that question.”

Grassley, as the judiciary committee chair, is the gatekeeper of the talks. Experts such as Holcomb say Grassley is opposed to across-the-board repeal of mandatory minimum sentences. “The real question of this bill is, how far can Grassley go?” says Molly Gill, the government affairs counsel for Families Against Mandatory Minimums, a nonprofit. “There’s a lot of pressure to do something significant. Is Grassley’s definition of significant close to everyone else’s? There becomes a certain point where you ask, is this real reform?”

Though Grassley’s office won’t share the exact details, the bill is expected to address a “safety valve” law that’s supposed to keep people from receiving unfair sentences.

Under the law, a federal drug offender can avoid a mandatory minimum sentence if he passes a five-part “safety valve” test. A convicted felon can be sentenced below a mandatory minimum if he was not a drug leader or “king pin,” he did not use or possess a gun during the offense, the offense is nonviolent, he was truthful with the government, and he has little or no other criminal activity on his record.

Reform advocates argue that even the most minor criminal history, such as being convicted for possessing a small amount of marijuana as a juvenile, can make an offender ineligible for the safety valve exception. The Senate Judiciary Committee bill may make the criminal record aspect of the safety valve more forgiving. It may also create a new loophole to get around mandatory minimums.

In addition, the legislation will include elements of a separate bill, the Corrections Act, authored by two senators of the judiciary committee: John Cornyn, R-Texas, and Sheldon Whitehouse, D-R.I.

That bill would allow certain well-behaved prisoners to earn time off their sentences by participating in recidivism reduction programs such as drug counseling and vocational training. The judiciary committee bill won’t be as comprehensive as the House’s SAFE Justice Act, sponsored by Reps. Jim Sensenbrenner, R-Wis., and Bobby Scott, D-Va., which would narrow the range of offenders that mandatory minimums apply to. Some members, like Grassley, think that reform plan is too far-reaching.

“Although there is clearly bipartisan support for a number of these proposals, [this] is a difficult issue,” says John Malcolm, the director of The Heritage Foundation’s Meese Center for Legal and Judicial Studies. “Some believe our current sentencing regime is unfair and the pendulum has swung too far in terms of imposing harsh sentences,” Malcolm continued. “Others believe increased incarceration and harsh sentences have taken some very dangerous people off of the streets. I remain cautiously optimistic there is some ‘sweet spot’ where both sides can compromise.”

Whatever the final product looks like, all sides are optimistic that Congress will give Obama a criminal justice reform bill to sign this year — because too many people are waiting. “The American criminal justice system has gotten has so far out of whack, with far too many people behind bars for too high a price,” Holcomb said. “The cold hard fact that people across the aisle can agree on is that America is better than this.”

I am pleased that some key details of the sentencing reform bill most likely to get to Prez Obama's desk are emerging, and I am not surprised that Senator Grassley is more interested in pursuing expanded exceptions to current federal mandatory minimums rather than across the board cuts to any current mandatory minimum. At the same time, I am concerned (but again not suprised) that advocates of federal sentencing reform are worried that this latest bill which has Senator Grassley's blessing is not going to be as far-reaching or impactful as other bills that have been making the rounds.

As a general matter, I favor a federal sentencing world without any crude and strict mandatory minimums terms for any non-violent crimes. But, especially now that we have had two-plus years of talk about statutory sentencing reform and nothing at all that has made it through Congress, I am hopeful all reform advocates will get on-board with whatever comes out of the Senate later this month. Especially with growing talk about violent crime increases in some cities and with sound-bite presidential campaigns now dominating the broader political conversation, I think the window for any meaningful federal sentencing reforms emerging from Congress is already starting to close. If visions of the "best" or even the "really good" prompt criticisms of any bill that has a real chance of passage, we could well end up with no bill making it through Congress at all.

Saturday, August 29, 2015

"Federal Drug Sentencing Laws Bring High Cost, Low Return"

More than 95,000 federal prisoners are serving time for drug-related offenses—up from fewer than 5,000 in 1980. Changes in drug crime patterns and law enforcement practices played a role in this growth, but federal sentencing laws enacted during the 1980s and 1990s also have required more drug offenders to go to prison— and stay there much longer—than three decades ago. These policies have contributed to ballooning costs: The federal prison system now consumes more than $6.7 billion a year, or roughly 1 in 4 dollars spent by the U.S. Justice Department.

Despite substantial expenditures on longer prison terms for drug offenders, taxpayers have not realized a strong public safety return. The self-reported use of illegal drugs has increased over the long term as drug prices have fallen and purity has risen. Federal sentencing laws that were designed with serious traffickers in mind have resulted in lengthy imprisonment of offenders who played relatively minor roles. These laws also have failed to reduce recidivism. Nearly a third of the drug offenders who leave federal prison and are placed on community supervision commit new crimes or violate the conditions of their release—a rate that has not changed substantially in decades.

Friday, August 28, 2015

As regular readers know, talk of federal sentencing reform, especially drug sentencing reform, has been all the rage in recent years. And yet, as this new report from the US Sentencing Commission details, in the last fiscal year, the federal criminal justice system still sentenced tens of thousands of drug offenders to hundreds of thousands of years of federal imprisonment.

The new report, titled excitingly "Overview of Federal Criminal Cases, Fiscal Year 2014," actually reports a decline in the overall number of federal criminal case sentences in the last fiscal year. But this overall decline was driven mostly by a significant decline in immigration cases. Here are some snippets from the report which highlight some of modern federal sentencing trends:

The number of individual offenders sentenced each year grew steadily after the Commission began reporting sentencing data in 1988, reaching a high of 86,201 individual offenders sentenced in fiscal year 2011. Since then the number of cases has decreased each year. In fiscal year 2014, the number of individual offender cases reported to the Commission fell by 4,199 (5.2%) cases from the previous year to 75,836. Since fiscal year 2011, the number of these cases has declined by 12.0 percent....

Drug cases have traditionally been the most common federal cases. However, beginning in fiscal year 2009, the number of immigration cases steadily increased, reaching a high of 29,717 such cases in fiscal year 2011. That year immigration cases were the most common offense in the federal system.... In fiscal year 2014, 24,011 drug cases were reported to the Commission, accounting for 31.7 percent of all cases. Most of these cases involved drug trafficking offenses. That year there were 22,238 immigration cases, accounting for 29.3 percent of the total federal caseload that year....

Several factors affect the average prison sentence for drug offenders, including statutory mandatory minimum punishments, the quantity of the drugs involved in the case, the prior criminal history of the offender, and whether the offender assisted the government in the investigation of his or her crime and other crimes.

For more than 20 years, crack cocaine offenders have been the most severely punished, however the length of imprisonment imposed in these cases has decreased steadily since 2007. In fiscal year 2014, the average imprisonment for drug crimes involving crack cocaine was 93 months of imprisonment (with a median sentence of 72 months). This compares to a high of 129 for these offenders in fiscal year 2007. Methamphetamine offenders are the next most severely punished drug crimes, with an average length of imprisonment of 88 months (and a median sentence of 70 months). Marijuana offenders have the lowest average imprisonment at 36 months (with a median sentence of 24 months)....

Mandatory minimum penalties enacted by Congress play a large part in determining the sentence for drug offenders, either outright or through the impact of these statutes on the structure of the guidelines. In fiscal year 2014, half of all drug offenders were convicted of an offense carrying a mandatory minimum penalty, however, this proportion was the lowest it has been since the Commission began reporting data about mandatory minimum penalty application in 1993. The portion of drug cases carrying a mandatory minimum penalty in fiscal year 2013 was 62.1 percent. This significant reduction was due, in large part, to a change in the policy of the Department of Justice as to how to charge drug cases.

In fiscal year 2014, powder cocaine offenders and methamphetamine offenders were convicted of an offense that provided for the imposition of a mandatory minimum sentence at the highest rates — 65.4 percent in powder cocaine cases and 61.8 percent in methamphetamine cases. Mandatory minimum penalties were least common in drug cases involving “other” drugs (mostly prescription drugs) and marijuana, accounting for 4.3 percent and 33.2 percent, respectively, of those cases.

These data highlight that DOJ's new charging policies have a measurable impact of the operation of the federal sentencing system. But that change did not dramatically alter the modern annual pattern of more than 125,000 cumulative years of future federal prison time being imposed on all federal drug defendants. All those years, at a conservative average taxpayer cost of $30,000 per year, means just federal drug sentencing in 2014 served to commit nearly $4,000,000,000 in future federal taxpayer funds to incarcerating those drug defendants sentenced over the last USSC fiscal year.

Tuesday, August 25, 2015

"Federalism in Action: How Conservative States Got Smart on Crime"

The title of this post is the title of this notable new paper authored by Jason Pye from the conservative group FreedomWorks. Here is how the relatively short white-paper concludes:

Conservative states have led the way on justice reform over the last decade. By changing the culture of corrections through sentencing reforms that limit mandatory minimum prison terms to the most serious offenders and rely on treatment as an alternative to incarceration, rehabilitative programs for those who do serve time, and continued assistance when offenders reenter society, lawmakers have reduced recidivism, made communities safer, and saved taxpayers money.

The results from conservative states — these laboratories of democracy — are key as members of Congress look for ways to deal with the federal corrections system, which has seen explosive population and cost growth of its own since 1980. This is federalism in action. Through sentencing reforms and a focus on treatment as an alternative to incarceration, the federal government can lessen the cost-burden on taxpayers by using the lessons from the states to get smart on crime.

Conservatives have embraced the justice reform movement, and they should continue to do so. While passed with the best of intentions, the policies of the past have proven unsustainable, both in terms of the fiscal cost and the negative impact on poor and minority communities. The model that conservative states have provided fundamentally changes the nature of the approach. Punishments are, of course, still meted out by courts, but the sentences given offer a means for offenders to alter the direction of their lives.

One such example is a woman named Sarah Gilleland, whose story was told by Gov. Nathan Deal in a joint session of the Georgia General Assembly in January 2012. “Sarah was a drug addict. The drug use that began as recreation resulted in a destructive cocaine and methamphetamine addiction. It took control of her life. At one point, she had no means of transportation, she lost custody of her little girl, she wound up homeless,” Deal explained. “But I mention Sarah tonight because she exemplifies many of the goals we hold for our corrections system.”

“Under the supervision of a drug court, piece-by-piece, she began rebuilding her life. With help, she beat addiction, she won back her daughter, she is now a sponsor helping other women who face the same trials, and because she provides a powerful example of hope and redemption, I have asked her to join us in this chamber tonight,” he said, pointing to Sarah in the gallery of the chamber.

“Sarah was given a shot a better life and she took it. Her story is not the exception, it is playing out all across Georgia as people reclaim their lives through the work of accountability courts.”

“That is why we must focus on transforming our corrections system into a last resort of opportunity—a place where low-level offenders are reclaimed and restored to society as functioning members of the community—working to support their own families and paying taxes,” he added.

Compelling stories such as this are not just told in Georgia, they are also told in other states that have adopted conservative justice reforms that focus on rehabilitation, rather than incarceration. And as more states and the federal government adopt the effort, more prison space will be reserved for the worst offenders in society, while those who have demonstrated a willingness to change their lives become productive citizens.

One of Kennedy’s most far-reaching bipartisan accomplishments was the Sentencing Reform Act of 1984. Yet this law serves as Exhibit A for Professor Murakawa’s theory that liberals bear responsibility for the failed criminal justice policies of that era. She blames the sentencing guideline system established by the Act for contributing to mass incarceration and accuses Sen. Kennedy of advancing unduly punitive policies....

Murakawa has harsh words for all who supported the 1984 Act, but she singles out Kennedy for special criticism. She decries the fact that the man she calls “the liberal lion of the Senate” included in the law various “carceral” elements such as the abolition of parole and a reduction in the availability of good-time credits for prisoners. She tracks changes in the sentencing bills Kennedy introduced from 1977 to 1984 and argues that his bills became increasingly punitive. She regards Kennedy as a “hard test case for my claim that Democrats aided, abetted, and legitimized a punitive law and order regime.”

The first flaw in the Murakawa book is its subtitle: How Liberals Built Prison America. No fair observer of criminal justice policy could conclude that liberals -- or conservatives or Democrats or Republicans -- bear sole responsibility for the spike in incarceration over the past half century. Rather, these disastrous criminal justice policies were a bipartisan misadventure that reflected the nation’s anger and fear about crime.

Every crime bill enacted by Congress in the 1980s and 1990s passed with broad bipartisan majorities and the support of leaders from both political parties. Only a handful of liberal House Democrats sometimes voiced concern. The Senate often passed crime bills by unanimous consent.

It is certainly fair to criticize Kennedy and other liberals for supporting bad crime bills. But they did not build “Prison America” by themselves, as the subtitle of Murakawa’s book unfairly suggests.

Murakawa’s narrative also fails to appreciate the complex collaborative nature of the legislative process. She attributes to Kennedy personally the flaws she perceives in his bills. Yes, he was a lead sponsor of the Sentencing Reform Act, but he did not write the law in a vacuum. The bill’s text is the product of years of negotiations with [Strom] Thurmond and many other members of the Senate, as well as committee markups and floor debates.

Murakawa acknowledges, but does not emphasize, the huge influence of the Justice Department in shaping the final law. It is no surprise that a bill first introduced during President Jimmy Carter’s administration became more conservative by the time it was signed into law by President Ronald Reagan.

Too often, Murakawa conflates the role of the guideline system and mandatory minimum sentencing laws in contributing to overincarceration. Many of the most draconian mandatory minimums for drug and gun crimes were enacted in 1986, after the passage of the Sentencing Reform Act of 1984 but before the guidelines took effect in 1987. Kennedy recognized that mandatory minimums were unjustified once the guideline system had been established. He repeatedly argued that guidelines are a reasonable mechanism to restrain judicial discretion, whereas mandatory minimums are blunt and unyielding.

He championed the safety-valve provision (18 USC 3553(f)) in the 1994 crime bill, which allows certain low-level, nonviolent offenders to be sentenced below applicable mandatory minimums. In fact, in his 1994 reelection race against Mitt Romney, Kennedy faced brutal ads claiming he was soft on crime because he had opposed mandatory sentencing.

Kennedy and other liberals can be faulted for voting in favor of the 1986 crime bill and other bills which contained mandatory minimums, but they did not lead the charge for those policies as Kennedy had for a guideline system. In fact, Sen. Kennedy was a leader in opposing mandatory minimums once their effect became clear and their inconsistency with the guideline system became apparent.

More generally, Kennedy was a voice for more rational criminal justice policies. He always opposed capital punishment and, as Prof. Murakawa notes, led the unsuccessful fight to pass the Racial Justice Act which would have allowed capital defendants to challenge their sentences using statistical evidence of racial bias....

Professor Murakawa has written a thoughtful, comprehensive academic study of federal sentencing policies. A book like hers provides an important service, but it cannot be expected to take account of the rough-and-tumble aspects of the legislative arena. During his long political career, Sen. Kennedy endured criticism that was a lot harsher and less fair than that contained in Murakawa’s book.

As someone who has been involved in criminal justice policy for many years, both before and after I worked for Sen. Kennedy, I share Murakawa’s concern about America’s overreliance on incarceration. I also applaud the current trend toward more sensible sentencing policies.

I have no doubt that if Sen. Kennedy were alive today, he would be leading the charge for criminal justice reforms. And he would be doing so in a bipartisan manner, working with Sens. Rand Paul, Mike Lee and other unlikely bedfellows. That was his way.

Wednesday, August 05, 2015

This new Wall Street Journal piece, headlined "Senator Holds Key to Sentencing Changes," provides a few more juicy details about what we might expect to emerge from the sentencing reform work of the critical chair of the Senate Judiciary Committee, Charles Grassley. Here are the excerpts that most caught my eye:

Now, as lawmakers in both parties and both chambers of Congress show greater interest in easing policies blamed for prison crowding, Mr. Grassley is presiding over final negotiations of a group he tasked with integrating assorted criminal justice proposals into a single package. Mr. Grassley, a four-decade veteran of Congress, said he plans to unveil a bill after Labor Day.

The most likely outcome of the talks, according to aides and lawmakers involved in the negotiations, is legislation that would combine programs to reduce recidivism and create more opportunities for early release with provisions giving judges some discretion to sentence below the mandatory minimum for certain drug defendants. “I think it’s fair to say there are going to be a lot less people that are going to have mandatory minimums apply, but it’s not going to be this across-the-board cut,” Mr. Grassley said, warning that drastic reductions in sentences would weaken penalties for serious offenders.

Mr. Grassley’s position — which fellow committee members say has evolved since March, when he warned of a “leniency industrial complex” — reflects a readjustment on criminal justice among many conservatives, who increasingly are joining Democrats in calling for legislation aimed at reducing mass incarceration....

Among Republicans, the party’s libertarian wing was first to back sentencing overhaul, and more mainstream Republicans have followed.... Mr. Grassley, once seen as a chief roadblock to change, is in a position to convert that momentum into a bill committee members say could clear the Senate this year with bipartisan support now rare in a deeply divided Congress.

But it isn’t clear whether committee members with fervent objections to mandatory minimum sentences will sign onto a proposal shorn of the more sweeping changes they envision. More substantial reductions were embraced in a bill that cleared the committee last year but never made it to the floor. Its sponsors, Sens. Richard Durbin (D., Ill.) and Mike Lee (R., Utah), this year reintroduced the bill, which would halve mandatory minimum sentences for some nonviolent drug crimes and give judges more flexibility to hand down sentences below the mandatory minimum.

“He’s offering a different approach than we started with,” Mr. Durbin said of the agreement Mr. Grassley is brokering. “It’s a much different approach, and it’s a harder approach.” Still, he said, he is encouraged that Mr. Grassley would entertain any legislation revising sentencing law. “Let me tell you, he was not even at the table initially, and now he’s at the table,” Mr. Durbin said.

A compromise bill may still encounter conservative resistance. One of the committee’s more cautionary voices is that of Sen. Jeff Sessions (R., Ala.), who said tough criminal code has been at the heart of a reduction in violent crime.

On the other side of the Capitol, Mr. Boehner has endorsed a bill by Reps. Jim Sensenbrenner (R., Wis.) and Bobby Scott (D., Va.) that would loosen some sentencing requirements, while also addressing probation and recidivism....

Some in Iowa have sought to hold Mr. Grassley to account for the ballooning prison population. A state report released last year estimated that Iowa’s prison population could swell 39% over the next decade. In May of this year, the Des Moines Register, Iowa’s largest newspaper, urged Mr. Grassley not to stand in the way of changes to federal sentencing laws. Home on a recent weekend, Mr. Grassley faced questions about criminal justice at two town meetings — a surprise, he said, as it marked the first time this year constituents had raised the topic. “They were happy that it looked like we were going to get a bill,” he said.

As I explained in recent prior posts here and here reporting on the latest Grassley reform forecast, I am fearful that politics and process may continue to impede any significant federal sentencing reform from getting done before the end of the year. Because it would appear that Senator Grassley has now invested considerably in developing a reform bill to his liking and given that he is a critical player for any reform proposals moving forward, I sincerely hope that the bill he unveils in September is perceived to be "good enough" to garner the support needed from all quarters to have a real chance at becoming law.

Sunday, August 02, 2015

Rep. Sensenbrenner explains why "Now is the time for criminal justice reform"

The Washington Examiner has published this notable new commatary authored by US Rep. Jim Sensenbrenner under the headline "Now is the time for criminal justice reform." Here are excerpts:

Over the past three decades, America's federal prison population has more than quadrupled — from 500,000 in 1980 to more than 2.3 million today. Prison spending has increased alongside it, placing a heavy burden on American taxpayers. According to the Pew Charitable Trusts, between 1980-2013, prison spending has increased by 595 percent, a staggering figure that is both irresponsible and unsustainable. Currently, the federal prison system consumes more than 25 percent of the entire Department of Justice budget.

This redirects funding from enforcement and other criminal justice programs and reduces our system's efficiency and effectiveness. The growth in prison population and spending, plus the massive human and social costs of mass incarceration, creates an urgent need for federal criminal justice reform.

The current high incarceration rates are a result of sweeping tough-on-crime initiatives, specifically the introduction of drug mandatory minimums in the 1980s. While minimums have proved successful in some circumstances, too often low-level, non-violent individuals have been caught up in the system. Instead of considering the unique circumstances of each case, taking into account the personal and criminal history of the offender, judges are forced to comply with federally mandated minimums that lock up millions of people without discretionary judgment.

Further, the current system lacks the ability to effectively rehabilitate nonviolent offenders, leaving them without the skills, education and training to successfully reintegrate into society. A shocking 50 percent of the federal prison population has substance abuse issues, mental health issues or both. An estimated 53 percent of offenders entering prison are at or below the poverty line, and our current prison population houses a disproportionate number of African-Americans, who account for nearly 40 percent of inmates.

Our prisons have become warehouses that simply lock away offenders, rather than treating the underlying issues that brought them there. This neglect contributes to high recidivism rates and puts a revolving door on the gates of America's federal prisons.

While Congress has remained largely silent on the issue, states have embraced reform — enacting wide-ranging, evidence-based changes that both improve public safety and rein in prison costs. These state programs have succeeded by prioritizing incarceration for violent and career criminals, strengthening community supervision and adopting alternative sanctions for lower-level offenders....

Last year, Congressman Bobby Scott and I led a congressional task force to investigate over-criminalization, which examined the scope of mass incarceration, as well as evidence-based programs for reform. In June, we introduced the Safe, Accountable, Fair, and Effective (SAFE) Justice Act, a comprehensive bill that addresses the major drivers of the federal prison population at the front and back ends of the system.

SAFE Justice promotes targeted sentencing over a one-size-fits-all approach, curtails the ballooning number of regulatory crimes, and includes policies that more effectively change the criminal behavior of the nearly 132,000 people on federal probation and post-prison supervision. The bill, which has been endorsed by House Speaker John Boehner and boasts 36 bipartisan cosponsors, advances research-based sentencing, release and supervision policies, and will enact meaningful reforms that shadow the success seen on the state level.

Our system cannot continue on its current trajectory. It's not only fiscally unsustainable, but morally irresponsible. Now is the time for criminal justice reform, and the SAFE Justice Act delivers the change necessary to enact fairness in sentencing, reduce the taxpayer burden and ensure the increased safety and prosperity of communities across the country.

Saturday, August 01, 2015

Latest reform news means still more waiting for those eager for federal sentencing reform

This new NPR piece, headlined "Despite High Expectations, Sentencing Reform Proposals Still On Ice," confirms my persistent fear that a long and uncertain slog remeains in Congress before anyone should expect to see a major sentencing reform bill on Prez Obama's desk for signature. Here is why:

Advocates and inmates working to overhaul the criminal justice system will have to wait at least a little longer for congressional action.

The Republican leader of the Senate Judiciary Committee, Charles Grassley, said he won't hold a public event on sentencing reform proposals until after the August recess, as language is still being drafted by a bipartisan working group. And in the U.S. House, lawmakers and their aides will spend at least the next five weeks making adjustments to a sweeping bill sponsored by 40 Democrats and Republicans, sources told NPR Friday....

Earlier this week, Texas Sen. John Cornyn, a member of the GOP leadership team, suggested that a hearing and markup on proposals could be imminent. "This seems to be another area where there's a lot of common ground, where a lot needs to be done, and I'm reassured by the bipartisan support we've seen, an optimism that we can get something important done," Cornyn said Tuesday.

But multiple sources from Capitol Hill, the executive branch and the advocacy community said concrete language on sentencing and criminal justice overhauls is still being hotly debated behind closed doors in both the Senate and the House. The Obama administration, including Deputy U.S. Attorney General Sally Yates, has been pressing to relax mandatory minimum sentences for certain drug crimes....

The principles on the table now in the Senate would not eliminate all mandatory minimums, and, in fact, some Republicans are pressing to create new ones, for other crimes. Another key issue is how the bill will come to define crimes of "violence," which could exclude thousands of prisoners from taking advantage of the legislative changes.

And in the House, a massive bill called the SAFE Justice Act, co-sponsored by Reps. Bobby Scott, D-Va., and James Sensenbrenner, R-Wis., got a boost this month when House leaders confirmed it would get time on the floor this year. But what the bill will look like by then is an open question, after the Justice Department and some police groups expressed concerns about its scope. Lawmakers are working to tweak the language over the next couple of months.

Congressional sources say they're moving carefully, to avoid falling into the same traps as they did in debate over the landmark 1994 crime bill, which imposed tough mandatory criminal penalties on defendants, incentivized states to build more jails and prisons, and barred inmates from being awarded grants to pursue education. All of those issues are now being rethought, more than two decades later.

As each week passes without consensus building around any specific reform proposal in the House or Senate, I am growing ever more worried that the considerable eagerness for enacting major reforms may, at least in the short term, continune to stall or ultimately prevent getting a even minor reforms into law. (For the record, I already think this dynamic undercut the prospects of enacting, many months ago, less-controversial-but-consequential aspects of the Smarter Sentencing Act.) I sincerely hope I am wrong to see the same forces that brought down the SSA at work here creating a growing risk that the "sentencing reform best" ends up becoming a problematic enemy of the "sentencing reform good enough to get actually enacted."

Thursday, July 30, 2015

Will Senator Grassley's (still-developing) sentencing reform bill make it to the President's desk in 2015?

The question in the title of this post is prompted by this new National Journal article providing the latest news on the on-going Senate discussions of a new sentencing reform bill spearheaded by Senate Judiciary Chair Charles Grassley. The piece is (misleadingly?) headlined "Chuck Grassley's Closer Than Ever to Giving in on Mandatory-Minimum Reform," and here are excerpts:

Grassley could be just days away from unveiling a major bipartisan justice-reform package that would seek to reduce recidivism and give inmates the chance to reduce their sentences with good behavior. The bill also will offer changes to the way judges dole out mandatory minimums.

Grassley has moved on the issue of mandatory minimums. While a bipartisan group of senators is still working on the final bill, it's clear that the Republican from Iowa has come a long way. "The points of negotiation are the ones you would expect, about in what areas mandatory minimums should be adjusted and to where they should be adjusted," says Democratic Sen. Sheldon Whitehouse, a key negotiator for justice reform in the Senate.

Unlike four months ago, today it is understood that any justice-reform package will include provisions that give judges more flexibility on sentencing. Behind the scenes, Grassley has fought to ensure that the provisions in the bill are not just rehashes of the Smarter Sentencing Act he was opposed to, but changes in mandatory minimums are coming. "It's not as far as I would like, but we are getting somewhere," Sen. Patrick Leahy, a sponsor of the Smarter Sentencing Act, told National Journal.

On mandatory minimums, Grassley insisted earlier this year that senators negotiate from scratch. "It was a long process, and he came in insisting on a different approach and we said, 'All right, let's take your approach and see how close we can come to our goal.' And he has worked in good faith with us and we're close," says Minority Whip Dick Durbin.

At this point, senators on both sides of the aisle report negotiations are closer than they have ever been. Senators have agreed that high-risk offenders, who are considered dangerous either because they deployed a weapon in a crime or have a history of violence, won't be eligible for the so-called safety valve. A narrow subset of nonviolent drug offenders will be.

"What we are trying to do is to make sure that those who are guilty of drug offenses do not have other aggravating factors such as using a gun, violence, or gang activity. We are working through the language very carefully on that," Durbin said. "How do we get the gang leaders and the brains of the gang separated from the rank and file?"

Many of the so-called back-end reforms that focus on giving prisoners a better chance of success after incarceration are borrowed from Republican Sen. John Cornyn and Sen. Whitehouse's Corrections Act.... The proposals in the Corrections Act focus on giving inmates the opportunity to get jobs and exhibit a propensity for success. Some low-level offenders can even work their way up to qualifying to serve the final weeks and months of their sentence supervised in the community.

Even once the new bill is introduced, however, there will still be changes made to it. And any legislation that makes it to the floor of the U.S. Senate will likely undergo a vigorous amendment process.

Other senators who have worked on criminal-justice reform before already see the upcoming legislation as an opportunity to advance their own causes. Sen. Tim Scott, a Republican from South Carolina, has introduced a bill to grant local law enforcement agencies $500,000,000 for body cameras over a five-year period. Scott says that arming agencies with cameras will help stem tensions between police and the communities they patrol. The floor may be another place for senators to add more stringent reductions in mandatory minimums.

Though Senator Grassley has been promising that "his" bill will be ready for prime time before the Senate takes its August recess, I remain fearful that the press of other legislative activities (as well as enduring opposition from the tough-and-tougher crowd) may prevent any significant federal sentencing reform from getting done before the end of the year. I hope my pessimism in this area is proven wrong; but given that we have already had more than two years of "momentum" and bipartisan talk of federal sentencing reform while no bill has even made it out of one congressional chamber, I am not going to count any sentencing reform chickens until they are doing the chicken dance on a desk in the Oval Office.

Wednesday, July 29, 2015

Based on Alleyne, Michigan Supreme Court declares its state guidelines unconstitutional and now advisory

As reported in this local press article, "the Michigan Supreme Court ruled Wednesday that the state’s sentencing guidelines that mandate prison terms are unconstitutional, and that judges should use them only in an advisory capacity." Here are excerpts from the state of the majority opinion in Michigan v. Lockridge, No. 149073 (Mich. July 29, 2015) (available here):

This case presents the question whether the Michigan sentencing guidelines violate a defendant’s Sixth Amendment fundamental right to a jury trial. We conclude that the rule from Apprendi v New Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000), as extended by Alleyne v United States, 570 US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013), applies to Michigan’s sentencing guidelines and renders them constitutionally deficient. That deficiency is the extent to which the guidelines require judicial fact-finding beyond facts admitted by the defendant or found by the jury to score offense variables (OVs) that mandatorily increase the floor of the guidelines minimum sentence range, i.e. the “mandatory minimum” sentence under Alleyne.

To remedy the constitutional violation, we sever MCL 769.34(2) to the extent that it makes the sentencing guidelines range as scored on the basis of facts beyond those admitted by the defendant or found by the jury beyond a reasonable doubt mandatory. We also strike down the requirement in MCL 769.34(3) that a sentencing court that departs from the applicable guidelines range must articulate a substantial and compelling reason for that departure.

Consistently with the remedy imposed by the United States Supreme Court in United States v Booker, 543 US 220, 233; 125 S Ct 738; 160 L Ed 2d 621 (2005), we hold that a guidelines minimum sentence range calculated in violation of Apprendi and Alleyne is advisory only and that sentences that depart from that threshold are to be reviewed by appellate courts for reasonableness. Booker, 543 US at 264. To preserve as much as possible the legislative intent in enacting the guidelines, however, we hold that a sentencing court must determine the applicable guidelines range and take it into account when imposing a sentence. Id.

Two of the seven Michigan Supreme Court Justices dissented from the majority opinion, and a lengthy dissent authored by Justice Markman ends this way:

I conclude that under the Sixth Amendment a criminal defendant is not entitled to a jury determination of facts necessary to establish his or her minimum parole eligibility date. Under Michigan’s sentencing system, the jury has the authority to render a defendant subject to the statutory maximum punishment, and the judge has no influence over this authority or any authority to usurp it. The judge’s exercise of judgment in establishing a parole eligibility date does not infringe the authority of the jury and does not violate the Sixth Amendment of the United States Constitution. Furthermore, Michigan’s indeterminate sentencing guidelines do not produce “mandatory minimum” criminal sentences, and because Alleyne only applies to facts that increase “mandatory minimum” sentences, Alleyne is inapplicable to our state’s guidelines. Therefore, I conclude that Michigan’s sentencing system does not offend the Sixth Amendment and would therefore affirm the judgment of the Court of Appeals.

Sentencing reform group propounds "The Dangerous Myths of NAAUSA"

In this post last week, I linked to this white paper produced by the National Association of Assistant US Attorneys titled "The Dangerous Myths of Drug Sentencing 'Reform'." This week has now brought this response from Families Against Mandatory Minimums (FAMM) titled in full, "The Dangerous Myths of NAAUSA: A Response to the National Association of Assistant U.S. Attorneys’ Paper Titled 'The Dangerous Myths of Drug Sentencing Reform'." Here are excerpts from the executive summary, introductory paragraph and conclusion of this FAMM response paper:

The National Association of Assistant U.S. Attorneys (NAAUSA), which represents neither the U.S. Department of Justice nor a significant percentage of assistant U.S. attorneys, opposes mandatory minimum sentencing reform on the basis of several unfounded and patently false claims. This paper rebuts those claims with data and facts...

The National Association of Assistant U.S. Attorneys (NAAUSA) recently released a white paper in which it purports to respond to the myths of sentencing reform advocates. Before addressing its substantive points, it is important to keep in mind who NAAUSA represents — or, more important, who it does not represent. NAAUSA does not represent federal prosecutors or the offices in which its members work. The U.S. Department of Justice (DOJ), which represents all federal prosecutors and prosecutes all federal cases, supports mandatory minimum drug sentencing reform. NAAUSA does not even speak for all assistant U.S. attorneys; only 28 percent of the nation’s assistant U.S. attorneys are members of NAAUSA, according to the group’s website. Former federal and state prosecutors now serving in Congress, including Senators Ted Cruz (R-TX), Mike Lee (R-UT), and Patrick Leahy (D-VT), are leading sponsors of federal mandatory minimum sentencing reforms opposed by NAAUSA.

While advocates from all points of the political spectrum, law enforcement groups, members of both parties of Congress, House Speaker John Boehner, the Department of Justice, and President Barack Obama all agree that significant mandatory minimum drug sentencing reform is needed — and the sooner the better — NAAUSA is using scare tactics and patently false and unsupported claims to attempt to maintain a status quo that indiscriminately incarcerates thousands of nonviolent drug offenders for decades, at the cost of billions of dollars that could be better invested in law enforcement and crime prevention. NAAUSA wants to maintain a sentencing system that is unjust, ineffective, expensive, harmful to families, and depleting law enforcement of limited resources. NAAUSA may call its opposition to mandatory minimum drug sentencing reform many things, but it cannot be called a serious effort to improve public safety.

Tuesday, July 28, 2015

More talk that all the talk about federal sentencing reform is about to produce some action

As July winds down and as more opponents of sentencing reform have become more vocal, I was coming to believe that all the talk (and more talk) of bipartisan efforts to finalize a federal sentencing reform bill was going to end up as another example of inside-the-Beltway sound and fury signifying nothing. But this new New York Times article, headlined "Push to Scale Back Sentencing Laws Gains Momentum," has me wanting to believe that optimism is still more justified than cynicism on this sentencing reform front. Here are excerpts:

For several years, a handful of lawmakers in Congress have tried to scale back tough sentencing laws that have bloated federal prisons and the cost of running them. But broad­based political will to change those laws remained elusive.

Now, with a push from President Obama, and perhaps even more significantly a nod from Speaker John A. Boehner, Congress seems poised to revise four decades of federal policy that greatly expanded the number of Americans — to roughly 750 per 100,000 — now incarcerated, by far the highest of any Western nation.

Senator Charles E. Grassley, Republican of Iowa and chairman of the Senate Judiciary Committee who has long resisted changes to federal sentencing laws, said he expected to have a bipartisan bill ready before the August recess. “It will be a bill that can have broad conservative support,” said Mr. Grassley, who as recently as this year praised the virtues of mandatory minimums on the Senate floor....

Of the 2.2 million men and women behind bars, only about 207,600 are in the federal system, according to the Federal Bureau of Prisons. But because the federal system has grown at the fastest rate of any in the country, many on the left and the right say they believe it exemplifies the excesses of America’s punitive turn. “If we can show leadership at the federal level,” Mr. Durbin said, “I think it will encourage other states to open this issue up for debate. The notion that we can create a bipartisan force for this really has value.”...

The dynamic is similar to the fight this year over changes to the Patriot Act when younger, more libertarian members — again supported by Mr. Boehner and Mr. Obama — worked with Democrats to change the law and eventually even won over a reluctant Mr. Grassley.

Friday, July 24, 2015

"Convicted Republicans Plead for Mandatory Minimums Changes"

Kevin Ring, the lobbyist who was sentenced in 2011 to 20 months in federal prison for his role in a corruption scheme, was pitching to GOP aides gathered in the Rayburn House Office Building on an effort to overhaul mandatory minimum requirements. Ring, who has been working in downtown Washington, D.C., since his April prison release, wanted the staffers to understand that current guidelines more often send low-level dealers and addicts to prison, not drug kingpins....

Two other convicted Republicans who served time in federal custody joined Ring for the lunchtime forum aimed at building support for a proposal sponsored by Republican Jim Sensenbrenner of Wisconsin and Democrat Robert C. Scott of Virginia. Red states are leading the way, and now it is “time that the federal government catches up,” Sensenbrenner, a former House Judiciary Committee chairman, said during his brief talk to staffers as they munched on Chick-fil-A lunches.

Despite positive feedback from Speaker John A. Boehner, Sensenbrenner acknowledged it would be tough to prod his bill forward. House Judiciary Chairman Robert W. Goodlatte, R-Va., is not on board. Sensenbrenner also suggested he may have “worn out my welcome” in the Senate, during the recent debacle over reauthorizing the Patriot Act, though a separate effort is gaining momentum in that chamber on a bipartisan basis.

Some federal prosecutors have expressed opposition to executive branch efforts to eliminate mandatory minimum sentences for nonviolent drug offenders, arguing they are an essential tool to dismantling drug rings.

Former New York City Police Commissioner Bernard Kerik, disgraced in 2004 when he was forced to withdraw from his nomination to head the Department of Homeland Security under President George W. Bush, said it was “incumbent” that the next White House administration tackle mandatory minimums. Kerik pulled out of consideration after admitting he had not paid taxes for a domestic worker who may have been an illegal immigrant, and later pleaded guilty to eight felony charges, including tax fraud and lying under oath. He was sentenced to 48 months in federal prison.

Knitting, chess and checkers were offered as adult continuing education classes to inmates at the federal prison camp in Cumberland, Md., where Ring and Kerik served their sentences. “You can teach an inmate real estate or accounting, but that federal conviction will keep them from getting a license,” Kerik said.

“Idle hands are the devil’s playground,” echoed Pat Nolan, who served 15 years in the California State Assembly before he was nabbed accepting an illicit campaign contribution as part of an FBI sting. He pleaded guilty to one count of racketeering and served 29 months in federal custody.

Twenty-four hours earlier, in the same room, House Judiciary Democrats unveiled legislation that would end mandatory life imprisonment for incarcerated youth, as part of a package of bills focused on sentencing and incarceration. Ranking member John Conyers Jr., D-Mich., and Rep. Sheila Jackson Lee, D-Texas, also introduced a measure aimed at increasing police accountability in the wake of high-profile deadly encounters between officers and black citizens.

“It is clear that improved national standards are necessary to address the ever-growing catalogue of incidents such as the case of Sandra Bland in Waller County, Texas, where a routine traffic stop led to an arrest and a death in custody 72 hours later,” Conyers stated Wednesday. “It is critical that we adopt smarter approaches to dealing with those involved with the criminal justice system.”

Among Republicans, the blame was on the Justice Department. Nolan fired off at U.S. attorneys, saying their jobs are “entirely political” and driven by numbers. They have the tools to protect the public and keep the streets clean, he said, “but there’s no restraint.”

Many notable passages in recent sentencing reform speech by DAG Yates

Earlier this week in this post, I noted that US Deputy Attorney General Sally Yates has been saying a lot of interest and import in support of federal sentencing reform efforts. Of particular note, DAG Yates on Wednesday delivered these significant remarks at the Bipartisan Summit on Fair Justice. The full speech should be read by all those interested in federal sentencing reform debates, and these passages struck me as worth highlighting:

[I]t’s because I’m a prosecutor that I believe so strongly in criminal justice reform. I have seen firsthand the impact that our current system and particularly our federal drug sentencing laws, can have on communities, families, the public fisc and public confidence in our criminal justice system. And it’s because of that I believe that we can and we must do better....

I’ve been a prosecutor for 26 years. I believe in holding people accountable when they violate the law and I believe that some people are dangerous and need to go to prison, sometimes for a very long time. But our system of justice must be capable of distinguishing between the individual that threatens our safety and needs to be imprisoned, versus the individual for whom alternatives to incarceration better serve not only that individual, but also make our communities safer....

While the country’s population has grown by about a third since 1980, our federal prison population has grown by 800 percent, due in large part to the influx of drug defendants. And today, under the current sentencing regime, our mandatory minimum laws do not calibrate a defendant’s sentence to match the threat that he or she poses to our safety. At its core, one of the basic problems with our mandatory minimum system is that it’s based almost exclusively on one factor — drug quantity. And so we have a hard time distinguishing the cartel leader who needs to be in prison for a long time from the low level mope who doesn’t. As a result, we have some defendants serving far more time in prison than necessary to punish and deter and instead, in the words of former Attorney General Holder, sometimes we warehouse and forget. This comes with great costs. Costs to operate our prison system, costs to our families and communities and costs to the public’s confidence in their system of justice.

From a dollars and cents standpoint, prisons and detention now account for roughly one-third of the department’s budget. Every dollar that we spend incarcerating non-violent drug offenders is a dollar that we can’t spend investigating today’s emerging threats, from hackers to home-grown terrorists. These costs are swallowing up funds that would otherwise be available for state and local law enforcement, victims of crime and prevention and reentry programs....

Some states have been great innovators in criminal justice reform. I met just yesterday with the National District Attorneys Association and I learned of many programs, from drug courts to recidivism reduction programs going on across the country designed to shift from incarceration as the only answer to prevention as the first response. And many states, red states and blue states, like Texas, Ohio, North Carolina and my home state of Georgia, faced with exploding prison costs, have enacted bold criminal justice reform not only reducing the size of their prison populations, but also and this is the important part, reducing crime rates as well. In the 29 states that have enacted laws limiting mandatory minimum sentences, shifting funds from incarceration to prevention, virtually every state has experienced a reduction in violent crime as well.

Despite all of this, there are some who want to keep things as they are. One of the most common concerns that I hear expressed about eliminating or reducing mandatory minimums is that long sentences for low level defendants is the only way to secure cooperation against the worst criminals. Not only is this inconsistent with my personal experience as a prosecutor, it is inconsistent with the data we have gathered since the Department of Justice recalibrated our drug charging policy two years ago. As I expect you know, under former Attorney General Holder’s smart on crime policy, prosecutors were directed not to charge mandatory minimums for lower level, non-violent drug offenders and our use of mandatory minimums decreased by 20 percent. Although some feared that defendants would stop pleading guilty and stop cooperating, our experience has been just the opposite. In fact, defendants are pleading guilty at the same rates as they were before we instituted the new policy. So the fear that not charging mandatory minimums would prevent us from being able to work our way up the chain just hasn’t been borne out....

I am here in part because I believe that sentencing reform will make prosecutors and law enforcement officers more effective, not less. Our ability to do good in this world — to advocate for victims, to hold wrongdoers accountable, to seek justice in all its forms — depends on public confidence in the institutions we represent. It’s based on a hard-earned reputation for fairness, impartiality and proportionality that has forever been the bedrock of our criminal justice system.

As prosecutors, it is our obligation to speak out against injustices and to correct them when we can. That’s why the Department of Justice is so engaged on this issue and I why I look forward to working with members of both parties as we seek a more proportional system of justice. Our nation and its citizens deserve nothing less.

Thursday, July 23, 2015

The National Association of Assistant US Attorneys (NAAUSA) has recently prepared this white paper "to inform the public discourse about our current federal drug sentencing system and the most dangerous myths of drug sentencing 'reform'." Here is the paper's introduction to its list and discussion of seven most dangerous myths:

Congress is considering legislation that would dramatically change how we sentence drug traffickers in our federal courts. These legislative proposals, including one euphemistically named the “Smarter Sentencing Act” (SSA), would slash federal minimum sentences for trafficking in all dangerous drugs by at least half and would make thousands of federal prisoners convicted of serious drug trafficking crimes eligible for early release without regard to their criminal history, violent background, or ties to gangs, drug trafficking organizations, or even international drug trafficking cartels.

Proponents also gloss over the significant changes in federal sentencing guidelines that have already and will continue to result in the early release of thousands of convicted drug traffickers. These sentencing reductions and early prisoner releases have occurred and will continue to occur regardless of whether Congress enacts the SSA or other sentence reduction proposals. The impact of these early releases is certain to inflict greater strains upon law enforcement efforts to preserve safety and dismantle gangs and drug trafficking organizations. If the Smarter Sentencing Act or similar proposals are enacted, they will only aggravate and compound these harms. Congress will have made our country less safe and contributed toward the reversal of a 20-year period of reduced crime in our nation.

It is critical that Congress avoid this path and understand the mistruths propounded by advocates of sentencing “reform” through the following seven myths.

In some subsequent posts I hope to find time to discuss some of the NAAUSA's discussion of at least some of these "most dangerous myths."

Wednesday, July 22, 2015

I have noticed lots of good crime and punishment reporting at BuzzFeed lately, and this new lengthy piece discussing an interview with US Deputy Attorney General Sally Yates is the lastest must-read. It is headlined "Justice Department: You Don’t Need Mandatory Prison Sentences To Put The Right Drug Criminals In Jail," and here are excerpts:

The central argument against the sweeping changes to the war on drugs proposed by the Obama administration and others goes like this: If you take away stringent mandatory minimum sentences for drug crimes, prosecutors can no longer use the fear of prison to flip drug criminals. If they can’t flip drug criminals, they can’t go after more powerful and dangerous drug criminals. And if they can’t go after those criminals, they can’t hope to make a dent in the illegal drug trade.

This was the governing principle of the prosecutors fighting the war on drugs for decades. Just a year or so ago, under the direction of former Attorney General Eric Holder, prosecutors changed the way they charged some drug criminals, avoiding charges carrying mandatory minimums when possible. Some prosecutors worried they’d lose their ability to net the biggest fish.

Sally Quinlan Yates, a career federal prosecutor now leading Obama administration efforts to reduce or eliminate mandatory minimum drug sentences on Capitol Hill, says the old system was all wrong, and she can prove it. “There were some out there who were saying, and I understand this, ‘We’ll never get another defendant to cooperate with us, they’re not going to plead guilty, they’re not going to cooperate with us. We’ve lost our leverage, we won’t be able to work our way up the ladder,’” Yates, the deputy attorney general, told BuzzFeed News. “But that’s turned out just not to be true. In fact, the rate of guilty pleas has stayed exactly the same as it was prior to our new mandatory minimum policy and in fact the rate of cooperation is the same or has gone up slightly.”

Yates has been saying for years that mandatory minimums — which don’t apply in the vast majority of cases federal prosecutors coerce cooperation from all the time — aren’t necessary to put high-level drug offenders behind bars. Now she’s overseeing the process by which prosecutors move away from mandatory minimums, and she’s one of the leading advocates in the administration push to eliminate mandatory minimums altogether in most cases.

It’s a fundamental change to the way prosecutors think about their work when it comes to drug cases. Getting convictions without relying on mandatory minimums is a key legacy of Holder’s term as Attorney General, and now it’s a central part of Yates’ argument to lawmakers that it’s time to change the nation’s sentencing laws.

As real momentum builds on Capitol Hill to rewrite sentencing laws with the goal of refocusing prosecution and lowering the prison population — an issue of prime importance President Obama in the final months of his presidency — Yates is among the top administration aides helping the process along on Capitol Hill. She meets regularly with the members of the Senate in both parties attempting to hash out a bipartisan criminal justice compromise they can pass before the end of the year.

As that effort continues, Yates will continue to be among the most prominent administration faces pushing the Obama team position. On Wednesday, she’ll speak at a bipartisan criminal justice policy summit that organizers hope will solidify momentum and help keep the ball rolling in Congress.

Yates has drawn the praise of advocacy groups who say she’s able to connect with Republicans in a way the Justice Department often wasn’t able to when Holder was in charge, due in part to GOP rhetoric that cast Holder as the biggest villain in the Obama administration. Criminal justice is a top policy goal for Holder’s successor, Loretta Lynch, and Yates also works closely with top department officials to help push unilateral changes to prosecution procedure set down by first by Holder and now by Lynch. She also spends a lot of time talking to working prosecutors, the group that has expressed the greatest skepticism toward the sweeping changes pushed by criminal justice advocates and the administration.

“People get used to doing things a certain way. You ask folks to do something differently, there’s naturally some discomfort with that among certain prosecutors, I think,” she said. “So change is hard.” Yates knows how to speak their language. On paper, she is basically the prototypical tough-as-nails federal prosecutor....

Changes implemented by Holder as part of his smart on crime iniative — which guided prosecutors away from throwing the book at low-level nonviolent drug offenses — led to a reduction in prosecutions. Yates is now in charge of implementing the new approach. She says most prosecutors welcome the changes, but Obama’s recent round of clemencies for nonviolent offenders sentenced under the old rules put into perspective how much of a culture change is still under way at the Justice Department.

“There are cases now that I see when I review clemency petitions and I see cases that were charged under different statutes, different laws at the time, and different policies [at the Justice Department] that certainly trouble me from a fairness perspective,” she said. “The prosecutors who were involved, they were following the department policies that were in place at the time. And so I’m not suggesting they were doing anything improper or unethical. But our thinking has evolved on this. And it’s time that our legislation evolved as well.”

Yates says prosecutors are open to changes, and she’s got the statistics to keep pushing those who are still skeptical. In the end she thinks the Justice Department will be continue to make the changes it can to the way the war on drugs is fought even if Congress can’t.

For Yates, the movement is a personal one. “At the risk of sounding really corny now, I’m a career prosecutor. I’ve been doing this for a very long time. And I believe in holding people responsible when they violate the law,” she said. “But our sole responsibility is to seek justice. And sometimes that means a very lengthy sentence, for people how are dangerous and from which society must be protected. But it always means seeking a proportional sentence. And that’s what this sentencing reform is really about.”

UPDATE: The speech that DAG Yates delivered today on these topics is available at this link. I will likely highlight a few notable passages in a later post.

Friday, July 17, 2015

"John Boehner Says Many People In Prison 'Really Don't Need To Be There'"

The title of this post is the headline of this new Huffington Post report which highlights that a very important GOP member of Congress has expressed his support for significant federal sentencing reform. Here are the highlights:

House Speaker John Boehner (R-Ohio) said on Thursday that there were many people in prison "that really don't need to be there," telling reporters that he wants bipartisan legislation proposing criminal justice system reform to come to the House floor. "I've long believed that there needed to be reform of our criminal justice system," Boehner said. "Some of these people are in there under what I'll call flimsy reasons."

Boehner made the remarks while stating his support for the SAFE Justice Act, legislation introduced by Reps. Jim Sensenbrenner (R-Wis.) and Bobby Scott (D-Va.) last month that would implement a wide range of criminal justice reforms, including narrowing the use of mandatory sentences for some nonviolent drug offenders.

Among other measures, the bill would favor alternative sentences "in limited circumstances, in which the defendant is a first-time, low-level, nonviolent offender who is capable of being supervised by probation and has not been convicted of a crime of violence," or other serious offenses. The bill is currently sitting in the House Judiciary Committee.

Boehner's support is encouraging, both Sensenbrenner and Scott told The Huffington Post. “Chairman Sensenbrenner and I have been working for months to put together a bill that includes bipartisan, evidence-based, state-tested solutions to reduce crime and save money," Scott said in a statement. "I am encouraged by Speaker Boehner’s endorsement of the SAFE Justice Act and hope that his support will help us continue to build bipartisan momentum to make these changes law.”

Wednesday, July 15, 2015

Almost exactly two years ago, in this July 2013 post reflecting frustration hearing lots of federal sentencing reform talk and relatively little major sentencing reform action, I speculated that the GOP gaining control of the US Senate along with the House might actually make the enactment of some significant federal sentencing reform more likely before the end of the Obama era. Thus today, thanks to this Politico article reporting on where developments in the GOP-controlled Congress stand, has me feeling a bit clairvoyant:

As President Barack Obama on Tuesday evening called on Congress to take up criminal justice reform, a bipartisan group on Capitol Hill was putting the final touches on a sentencing overhaul deal to be announced as soon as next week. Their message to the president: You’re preaching to the choir. Story Continued Below

“We’ve actually been working on it for quite a while,” said Senate Majority Whip John Cornyn (R-Texas), one of the key negotiators of a package being hashed by members of the Senate Judiciary Committee. “You may see some legislation here in the next week or so. This is active. … [W]e’re close.”...

Right now, the prospects for such legislation seem good, given that lawmakers from both parties have been wrangling with a reform bill for months. Tuesday, for example, the House Oversight Committee became at least the third congressional panel to highlight problems in the justice system, inviting two governors, a handful of senators, House members and experts to discuss a path forward for reducing the number of inmates in federal prisons.

Hours later, the House officially formed the Congressional Criminal Justice and Public Safety Caucus, which will include justice reform supporters. And across the Capitol, Cornyn joined Sens. Mike Lee (R-Utah), Cory Booker (D-N.J.) and Sheldon Whitehouse (D-R.I) for a public dialogue that emphasized the importance of reform.

The biggest announcement is just around the corner: Senate Judiciary Chairman Chuck Grassley (R-Iowa) told POLITICO on Tuesday that his panel is close to announcing a deal on the bipartisan package his panel has been working on for months. Only about four outstanding issues remain, he said, predicting the package will be unveiled before August recess.

Tuesday, July 14, 2015

In praise of GOP Rep. Sensenbrenner making the moral case for sentencing reform

Most long-time federal sentencing reform advocates likely have long shared my concern that Wisconsin GOP Representative James Sensenbrenner was a significant impediment to achieving significant federal sentencing reform. Indeed, as noted in this prior post, as recently as two years ago, Rep. Sensenbrenner was defending federal mandatory minimum statutes on very dubious grounds.

But now that Rep Sensenbrenner has been working for a couple years on bipartian federal criminal justice reform, he is a co-sponsor of the important SAFE Act (details here) and today delivered this potent testimony to the GOP-controlled House to support his call for significant sentencing reform. Here is an excerpt from the testimonty I found especially notable and important (with my emphasis added):

Over the past three decades, America’s federal prison population has more than quadrupled — from 500,000 in 1980 to more than 2.3 million today. Prison spending has increased by 595 percent, a staggering figure that is both irresponsible and unsustainable.

And yet, this increased spending has not yielded results. More than 40 percent of released offenders return to prison within three years of release, and in some states, recidivism rates are closer to 60 percent. Several studies have found that, past a certain point, high incarceration rates are counterproductive and actually cause the crime rate to go up.

Especially among low risk offenders, long prison sentences increase the risk of recidivism because they sever the ties between the inmate and his family and community. These are the ties we need to help reintegrate offenders as productive members of society.

These severed ties are also at the heart of the moral case for reform. It’s not just the people in prison who are paying the punishment for their crimes. Mass incarceration tears families apart and deprives children of their fathers and mothers. It likely means a loss of job, possibly home, and any support he or she had within the community.

And that’s where we are with our sentencing policy — we’re spending more, getting less, and destroying communities in the process. The system is broke, and it’s our job to fix it.

It is remarkable and a true sign of the modern sentencing times that this reform rhetoric, which sounds more like a passage from an opinion or article by Wisconsin District Judge Lynn Adelman, is coming from GOP Rep. Sensenbrenner. And the adjectives I have stressed in the quoted passage are, in my view, at the heart of the most compelling case for federal reforms and a broad response to modern mass incarceration: the current system is broken and counterproductive, irresponsible and unsustainable, but even beyond any data-driven, cost/benefit analysis, there is a powerful "moral case for reform" that resonates with the commitment to liberty, family, community and limited government that triggered the American Revolution.

Monday, July 13, 2015

Way back in 2007, then-Prez-candidate Barack Obama on the campaign trail made much of the need for nationwide (and especially federal drug sentencing) criminal justice reform in a speech to Howard Univesity (which I discussed in this 2010 law review article). In that speech, candidate Obama promised that as President he would be "willing to brave the politics" to help engineer criminal justice reforms. As long-time readers know from my commentary here and elsewhere, I have long been disappointed that Prez Obama has left us waiting a long time for the reality of his policy work to match the rhetoric of his first political campaign.

But now, roughly eight years after making campaign proimises at Howard Univesity (and, tellingly, after the conclusion of every significant nation election in which Prez Obama is the most significant player), it appears that Prez Obama is finally poised to invest his political muscle and capital on crimnal justice reform. This effective Bloomberg Politics article, headlined "Obama to Push U.S. Sentencing Change Backed by Koch Brothers," explains how and provides effective context:

The White House is preparing to seize advantage of bipartisan concern over the burgeoning U.S. prison population and push for legislation that would reduce federal sentences for nonviolent crimes.

President Barack Obama will champion sweeping reform of the criminal justice system during a speech to the NAACP annual convention on Tuesday in Philadelphia, press secretary Josh Earnest said Friday. Obama will present ideas to make the system “safer, fairer and more effective,” Earnest said.

Later in the week, Obama will become the first sitting U.S. president to visit a federal prison when he goes to a medium-security facility in El Reno, Oklahoma. He’ll also sit for an interview with Vice News for an HBO documentary on the criminal justice system, Earnest said.

Obama came to office promising to reduce the number of Americans imprisoned for nonviolent drug offenses, and in 2010 he signed a law reducing disparities in sentences for possession of crack and powder cocaine. Some Republicans and police organizations criticized the moves as too lenient, but now a bipartisan coalition that includes Obama’s chief political antagonists, billionaires Charles and David Koch, have joined him to support relaxing federal sentencing guidelines.

Key lawmakers from both parties have been invited to the White House next week to discuss strategy. And Obama is expected to soon issue a spate of commutations for nonviolent drug offenders identified by a Justice Department program launched last year. Top officials from the department, including Deputy Attorney General Sally Yates, have recently met with members of Congress to express support for sentencing-reform legislation.

“Engagement with the president has been lacking for the past six years, but this is one topic where it has been refreshingly bipartisan,” Representative Jason Chaffetz, the Utah Republican who heads the House Oversight Committee, said in a telephone interview....

Chaffetz said he was optimistic that a package of bills would advance because of a diverse coalition of supporters lined up behind it. The president dubbed the legislation “a big sack of potatoes” in a meeting with lawmakers in February, Chaffetz said. The composition of the legislation isn’t final.

The Koch brothers, who are major Republican donors, support a bill introduced last month by Representatives Jim Sensenbrenner, a Wisconsin Republican, and Bobby Scott, a Virginia Democrat, that would encourage probation rather than imprisonment for relatively minor, nonviolent offenses and improve parole programs in order to reduce recidivism.

The Sensenbrenner-Scott bill is modeled on state efforts to reduce incarceration. While the federal prison population has grown 15 percent in the last decade, state prisons hold 4 percent fewer people, according to Sensenbrenner’s office. Thirty-two states have saved a cumulative $4.6 billion in the past five years from reduced crime and imprisonment, his office said in a report....

Representative Bob Goodlatte, the Republican chairman of the House Judiciary Committee, held a meeting in late June to listen to proposals from lawmakers in both parties. And Chaffetz, who described the Republican leadership in the House as “very optimistic and encouraging,” scheduled hearings on the issue by his committee for July 14 and 15. “I don’t normally do two days of hearings; we’re giving it that much attention,” Chaffetz said. “So it has more momentum than anybody realizes.”

There is a significant obstacle on the other side of the Capitol: Senator Chuck Grassley, the Iowa Republican who chairs his chamber’s Judiciary Committee.... But supporters of the House legislation have reason for optimism: Last month, Grassley announced he would work on a compromise in the Senate.

While Grassley has indicated a willingness to reduce penalties for some crimes, he wants to increase mandatory minimum sentences for other offenses, a Senate Republican aide said. The person requested anonymity to discuss internal deliberations. That could make sentencing changes an easier sell to tough-on-crime voters, but endanger the support of lawmakers who see mandatory minimums as bad policy. “There does appear hope for a bipartisan compromise,” Earnest said Monday. “We obviously welcome that opportunity.”

Senator Mike Lee, a Utah Republican who has long championed criminal justice reform, is leading negotiations with Grassley. He’s backed by Patrick Leahy of Vermont, the senior Democrat on Grassley’s committee, and Dick Durbin of Illinois, the second-ranking Democrat in the Senate.

The talks remain sensitive. During a Judiciary Committee hearing on Wednesday, Leahy -- admitting he already knew the answer -- asked Yates, who was testifying before the panel, to restate her support for sentencing reform. “I was born at night, but not last night,” Grassley interjected. “And I know that question was in reference to me, and I want everybody to know that we’re working hard on getting a sentencing-reform compromise that we can introduce. And if we don’t get one pretty soon, I’ll probably have my own ideas to put forward.”

Thursday, July 09, 2015

ACLU and Koch reps make pitch for SAFE Act and federal sentencing reforms

This notable new Politico commentary advocating for federal criminal justice reform is authored by Anthony Romero, executive director of the American Civil Liberties Union, and Mark Holden, general counsel of Koch Industries. The piece is headlined "A New Beginning for Criminal Justice Reform," and here are excerpts:

The U.S. criminal justice system is in a state of crisis — and Congress is finally moving to address it. On June 25, Reps. Jim Sensenbrenner (R-Wis.) and Bobby Scott (D-Va.) introduced the bipartisan Safe, Accountable, Fair and Effective Justice Act. Known as the SAFE Justice Act, the legislation is an important step in addressing America’s ballooning, costly and ultimately unjust federal sentencing and corrections system, which needlessly throws away lives and decimates entire communities.

The criminal justice system’s problems are evident all around us. Over the past three decades, Congress has steadily increased the size and scope of the federal criminal code, ensnaring people who have no business being behind bars, without a corresponding benefit to public safety. From 1980 to 2013, the federal criminal code increased from 3,000 crimes to approximately 5,000 crimes. Over the same period, our federal prison population skyrocketed from 24,000 to 215,000 — a 795 percent overall increase — while federal spending on prisons also soared from $970 million to more than $6.7 billion — a 595 percent increase.

While we have a good handle on how much taxpayers’ money we’ve wasted on over-criminalization and mass incarceration, the cost in human lives is incalculable. Almost every single federal prisoner serving life without parole for nonviolent offenses has one thing in common: a drug offense that resulted in a de facto death sentence. This excessive reliance on punitive sentencing destroys individual lives, families and communities. It is not clear it makes communities any safer. In addition, it is fiscally irresponsible and morally repugnant.

This points to a simple conclusion: The criminal justice system must be reformed. It must be dramatically altered to maximize public safety, minimize its cost to taxpayers and ensure that justice is served — for the victims of crimes, the individuals who commit them and for society at large....

The SAFE Justice Act would incorporate lessons learned in [reform] states and apply many of them at the federal level. It seeks to address several specific issues with the current criminal justice system. Four areas of reform are particularly promising: First, it begins the process of reversing over-criminalization and the over-federalization of the criminal code. The act forces the federal government to disclose the creation of new criminal offenses — a common-sense action that would clarify just how large the criminal code is and how fast it has grown. It also empowers the victims of federal over-criminalization to seek redress via the Office of the Inspector General. It also contains various reforms to protect against wrongful conviction, reduce pre-trial detentions, and eliminate federal criminal penalties in state jurisdictions, including penalties for actions such as drug possession.

Second, it would reform sentencing. Today, mandatory minimums force too many people to plea to lengthy prison sentences — punishments that may not fit the crime. The act seeks to undo this broken system by encouraging judges to offer probation to low-level offenders, while increasing pre-judgment probation. It also would restrict mandatory minimums to specific categories of people — such as high-level members of drug-trafficking organizations rather than street dealers — as originally intended by Congress.

Third, it would reduce recidivism. Too often, the criminal justice system’s flaws turn federal prisons into revolving doors for repeat offenders. The legislation proposes to address this problem with a number of reforms, including shorter sentences for people who participate in specific educational and vocational programs. These reforms can ensure that people who leave federal prison are better equipped to rejoin their communities and contribute to society.

Fourth, it would increase transparency. The bill would require that federal agencies issue regular reports on recidivism rates, prison populations and other key statistics. It also would require that cost analyses be presented to judges prior to sentencing to help them make prudent decisions.

This is only a partial list of the reforms proposed in the SAFE Justice Act. They are a good start — but they are not enough to reverse the damage, financially and in terms of human lives, caused by decades of misguided policies. In particular, members of Congress from both parties should continue to devote particular attention to ensuring that criminal laws penalize only the people who intend to commit crimes, an important distinction that many new federal criminal laws miss. More broadly, they must identify and pass targeted policies that are smarter on crime, rather than just tougher.

Tuesday, June 30, 2015

Lots and lots of Johnson GVRs with Justice Alito explaining their meaning and (limited?) import

Today's final Supreme Court order list confirms my view that the Johnson ACCA vagueness ruling is the most consequential criminal case of the just-completed SCOTUS Term. That is because the list has, by my count, over 40 cases in which the Justices have now "GVRed" an Armed Career Criminal Act sentence: in all these appeals to the court, the order list states that certiorari for each case is granted and then the judgment is vacated, and the case is remanded to the appropriate circuit court "for further consideration in light of Johnson v. United States, 576 U.S. ___ (2015)."

Notably, there were GVRs in this order list to nearly every one of the 12 federal circuit courts, and I am confident that even the few circuits left out of this morning's GVR fun have at least a few Johnson pipeline cases already on their docket. Consequently, it will be interesting to see which of the circuits is the first to have a significant Johnson implementation ruling. To that end, Justice Alito notably added this statement to nearly every Johnson GVR:

Justice Alito concurring in the decision to grant, vacate, and remand in this case: Following the recommendation of the Solicitor General, the Court has held the petition in this and many other cases pending the decision in Johnson v. United States, 576 U.S. ____ (2015). In holding this petition and now in vacating and remanding the decision below in this case, the Court has not differentiated between cases in which the petitioner would be entitled to relief if the Court held (as it now has) that the residual clause of the Armed Career Criminal Act of 1984, 18 U.S.C. Sec. 924(e)(2)(B)(ii), is void for vagueness and cases in which relief would not be warranted for a procedural reason. On remand, the Court of Appeals should understand that the Court’s disposition of this petition does not reflect any view regarding petitioner’s entitlement to relief.

Friday, June 26, 2015

In a very important Fifth Amendment criminal procedure ruling, though one certain to be overlooked because of an even more important Fourteenth Amendment ruling issued right before it, the Supreme Court this morning in Johnson v. United States, 13-7120 (S. Ct. June 26, 2015) (available here), ruled that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws." Justice Scalia wrote the main opinion for the Court (which carried five other Justices, including the Chief), and here is a key paragraph from the begining of the opinion's legal analysis:

We are convinced that the indeterminacy of the wide-ranging inquiry required by the residual clause [of ACCA] both denies fair notice to defendants and invites arbitrary enforcement by judges. Increasing a defendant’s sentence under the clause denies due process of law.

I will need some time to review and reflect to figure out how big a ruling Johnson may prove to be. But the basic reality that the defendant prevailed here on the broadest constitutional ground (and especially the fact that only Justice Alito was prepared to rule for the federal government on appeal) further proves a point I have been making since Blakely was handed down over a decade ago: The modern US Supreme Court is, at least on sentencing issues, the most pro-defendant appellate court in the nation.

That all said, and of particular significance for ACCA sentences that are built on convictions that do not depend on interpretations of the residual clause, the Court's opinion in Johnson ends with this critical and clear discussion of the limits of the holding:

We hold that imposing an increased sentence under theresidual clause of the Armed Career Criminal Act violates the Constitution’s guarantee of due process. Our contraryholdings in James and Sykes are overruled. Today’s decision does not call into question application of the Act to the four enumerated offenses, or the remainder of the Act’s definition of a violent felony.

As this report from The Hill details, a notable and significant group of Representatives are backing a notable and significant new federal criminal justice reform bill. Here are the basics:

A bipartisan pair of lawmakers on Thursday unveiled a comprehensive criminal reform bill aimed at reducing the federal prison population. The Safe, Accountable, Fair, and Effective (SAFE) Justice Act from Reps. Jim Sensenbrenner (R-Wis.) and Bobby Scott (D-Va.) calls for new rehabilitation methods and sentencing reforms. The bill is the result of the House Judiciary Committee's over-criminalization task force which examined ways to reform federal prisons....

Sensenbrenner said the bill was intended to reverse the staggering increase in the prison population, which has quadrupled in the last 30 years. Despite increased incarceration and spending on prisons, recidivism still remains a problem, he also noted. The bill applies mandatory minimums only to major crimes, and “expands recidivism reduction programming to incentivize and reward those who are working to make a change,” Sensenbrenner said....

Scott said the bill would encourage innovate approaches to criminal justice reform. “We were not interested in playing politics with crime policy,” said Scott. He noted that 32 states had been able to reduce both crime and incarceration rates over the past five years. Calling those states "laboratories of democracy," he said the bill adopted many of those tested practices.

Scott lamented the high incarceration rate in the U.S. He said the bill aims to “direct non-violent low level, first time offenders from prison" and better acknowledge the conditions that lead to crime. “If you address those underlying issues, you will have a better return rate than just from locking them up,” he said.

The bill also garnered support from major groups across the political spectrum. Leaders and representatives from Koch Industries, the ACLU, the NAACP, the Washington D.C. Police Foundation, Families Against Mandatory Minimums, and the Center for Criminal Justice Reform at the American Conservative Union have expressed support for the bill.

The bill is co-sponsored by Reps. Doug Collins (R-Ga.), Elijah Cummings (D-Md.), Raul Labrador (R-Idaho), Judy Chu (D-Calif.), Mia Love (R-Utah), and Scott Rigell (R-Va). “Too many of our children have gotten caught into a cycle that they can not get out of,” said Love, explaining the bill's appeal.

Rep. Rigell touted the broad coalition backing the bill, which includes Koch Industries, owned-by the Koch Brothers, who are major conservative donors. “If you think of those as two gate posts, “ he said, noting Koch Industries and the ACLU, “that’s an awfully wide gate.”

I am struggling to find on-line the full text of this important new federal sentencing reform proposal, but this summary from FAMM leads me to believe that this new SAFE Justice Act may go significantly farther (and be more politically viable) that the Smarter Sentencing Act and the Justice Safety Valve Act proposals that failed to move forward in the last Congress. Indeed, these passages from this new Vox article, which provides the most detailed media account of the SAFE Justice bill's specifics, is prompting me to think all would-be federal reformers — including Prez Obama and his Justice Department, and especially Senators Cruz and Paul and other reform-minded GOP Prez candidates — should think seriously about giving up on the SSA and other reform bills now in the Senate in order to put all their advocacy efforts behind getting SAFE Justice passed through the House ASAP:

While Senate efforts at criminal justice reform have exposed a generational split in the Republican Party, in which young reformers like Senators Mike Lee and Rand Paul face off against old-school, tough-on-crime conservatives like Senators Chuck Grassley and Jeff Sessions, the House's bill was written by one of those old-school Republicans — Rep. James Sensenbrenner of Wisconsin — as well as Rep. Bobby Scott (D-VA).

Sensenbrenner and Scott think of the Safe Justice Act as a federal version of the criminal justice reform bills that have been taken up in state after state over the past several years, many of them under the mottos of "justice reinvestment" and "smart on crime." In their minds, they're building on what's worked in the states and are in line with reformers' emphasis on "data-driven" and "evidence-based" criminal justice policymaking.

The Safe Justice Act is a collection of dozens of different reforms. Most of them aren't terribly big on their own, but many of them overlap. That makes it really hard to estimate exactly how much the federal prison population would shrink if the bill became law. But its effect would be bigger than anything that's been introduced in Congress so far.

Many of the reforms would cut sentences for drug crimes — which reflects a growing consensus that nonviolent drug offenses aren't as bad as violent crimes. Drug prisoners are about half of all federal prisoners (unlike in states, where violent crime is the biggest cause of incarceration). That means that many of the Safe Justice Act's biggest reforms would target the largest slice of the federal population....

Most changes to prison sentences in Congress have focused on cutting mandatory minimum sentences, which force judges to sentence people to five, 10, or 20 years for certain drug crimes. But across-the-board cuts to mandatory minimums have been met with serious resistance from old-school Republicans, including Senate Judiciary Chair Chuck Grassley (R-IA). The House's solution, via the Safe Justice Act, isn't to reduce the mandatory minimums themselves — but to narrow the range of people who they apply to. Instead of someone who's convicted of trafficking a certain amount of cocaine being automatically sentenced to 10 years, for example, he'd only trigger the 10-year minimum if he were also a leader or organizer of an organization of five or more people. And even then, the bill says that judges can override the mandatory minimum if the defendant doesn't have much of a criminal history, or has a serious drug problem.

The bill would also make it possible for more people to be sentenced to probation instead of getting sent to prison. It would allow drug offenders to get probation if they'd been convicted of low-level drug crimes before. It would encourage judges to give probation to first-time low-level offenders. And it would encourage districts to start up drug courts and other "problem-solving courts"; some states have found these are better ways to treat some addicts than prison is....

Current prisoners whose sentences would have been affected by the bill's front-end reforms could apply to get their sentences reduced that way. But the Safe Justice Act would also give them another way to reduce their sentences: by getting time off for rehabilitation. Under the bill, every federal prisoner would get an individual case plan, based on what particular prison education, work, substance abuse, or other programs are the best fit for his needs. For every month a prisoner follows the case plan, he'd get 10 days off his prison sentence — meaning a prisoner with a perfect behavior record could get his sentence reduced by a third. (Prisoners serving time for homicide, terrorism, or sex crimes aren't eligible for time off, but that's a very small slice of the federal prison population.) The logic is that prisoners who want to rehabilitate themselves, and whose good behavior shows they're succeeding, shouldn't be forced to spend extra time in prison just for prison's sake.

The bill goes even further when it comes to probation — which affects many more people than prison. For every month of perfect behavior on probation, the offender would get 30 days off the end of his sentence — essentially cutting the probation term in half. If the offender violated probation, on the other hand, there would be a set of gradually escalating punishments, instead of an automatic ticket back to prison....

In the year 2015, it is extremely hard to get any sort of bill through Congress. And Sensenbrenner, Scott, and their fellow reformers have a narrow window before the presidential campaign saps Congress of any will to act it has left. So the barriers are pretty high. But this isn't, in itself, supposed to be a polarizing bill. The presence of Sensenbrenner and other old-school Republicans reflects that. And this is something that both houses of Congress have been debating for some time.

If House leadership decides to snatch up the Safe Justice Act and bring it to the floor quickly, it might give the Senate enough time to act. Maybe they'll be interested in the provisions that would make it a little harder for the federal government to treat regulatory violations as crimes; that's a pet cause of conservatives, even those who aren't otherwise committed to reforming criminal justice.

Still, House leadership might not be interested. But this is the broadest bill that's been introduced during the current wave of criminal justice reform, and it's a marker of just how much consensus there is among reformers in both parties when it comes to reducing federal incarceration.

Thursday, June 25, 2015

Regular readers know that Senator Charles Grassley is perhaps the most critical current player in the current debates over federal sentencing reform because of his role as Senate Judiciary Committee Chair. But this new National Journal article, headlined "Cornyn's New Role: The 'Bridge' on Tricky Bipartisan Bills," highlights the key role now being played by the current Senate whip. Here are excerpts from an interesting piece about Texas Senator John Cornyn:

On April 10, John Cornyn toured a huge prison in rural east Texas, about a three-hour drive north of his Houston birthplace. Nearly 700 security employees stroll the H.H. Coffield facility, which has a maximum capacity of around 3,800 prisoners, and Cornyn, a three-term senator who rose to the Texas Supreme Court and attorney general positions during the lock-'em-up-and-throw-away-the key 1990s, was there to draw attention to a project helping prisoners learn the skills they need to rehabilitate — and get out.

"Some of the inmates were so poorly educated they couldn't even read a tape measure," said Cornyn in an interview in his Washington office this week. "Which if you think about it, it doesn't say much for our public education system, but it also just shows how big a problem we have when people have zero coping skills — no education — and they basically have lived a continuous life of crime, and they know nothing else in terms of the challenges. We have to break that cycle."

Almost seven months into his role as Senate majority whip, Cornyn talks quite a bit about breaking cycles, whether in prisons or the nature of crises in the Senate. His official role is to keep the Republicans in line and on-message, but he also has been an influential figure — the "bridge," as one Democrat puts it — on bipartisan pieces of legislation, particularly on two in the Judiciary Committee that bedeviled the last Congress: a criminal-justice reform package — the cause du jour infiltrating liberal and conservative think tanks, as well as the 2016 presidential debate — and patent-reform legislation with Sen. Chuck Schumer. Neither is on the Senate GOP leadership's short list, but both bills could see floor action with Cornyn's help, especially if the appropriations process breaks down, leaving room in the schedule.

On criminal justice, Democrats see Cornyn as an instrumental figure in creating the package that requires low-risk offenders to participate in recidivism-reduction programs for an earlier release—saving taxpayer money and making communities safer — and that includes a bipartisan bill reducing mandatory-minimum prison sentences. That bill is supported by members across the ideological spectrum but was opposed by Cornyn — who says now that it wasn't ready for "prime time" — along with Sen. Chuck Grassley, now the Judiciary Committee chairman, and others last year.

"I think we need a marriage of both of those proposals," said Cornyn, who would like to build on his bill to include some sentencing reforms. "I think looking at nonviolent offenders, low-risk offenders, I think there's some things we can do."

"My hope is that in the near future we will have a product that we can then have a hearing on and then mark up, and my hope is that we'll get something to the president this year," he added.

Sen. Dick Durbin, who is leading the sentencing-reform effort with Sen. Mike Lee, said Tuesday that Congress could have a "dramatic impact" on the federal prison population by addressing even just a "very narrow" category of drug offenses not involving firearms, gangs, violence, or terrorism.

Grassley has been an obstacle on the issue, according to Sen. Jeff Flake, a Judiciary panel member. Grassley was not invited to a White House meeting to discuss the topic this year and was advised in his hometown paper to take up sentencing reform a few months ago. But he seems more willing to move the package now — he said recently that the committee has the "capability" of reaching a bipartisan agreement this year — and has been convening meetings to see if a compromise can be struck.

Sen. Sheldon Whitehouse, a Judiciary Committee Democrat, sees Cornyn as the "bridge" trying to get their bills through the panel. "As you know, I think Chairman Grassley has gone to the floor three separate times to express his displeasure and dissatisfaction with the mandatory-minimum bill," said Whitehouse. "So by way of the chairman putting a marker down that he's not pleased with a piece of legislation in his committee, it would be hard to imagine much of a bigger, louder marker than that."

"And I think Senator Cornyn is a very helpful voice in trying to be a bridge among the different parties involved here," he added. "Whether it's Chairman Grassley, or Senator Lee or Senator Durbin, I think both Senator Cornyn and I are trying to be that bridge, but given that the chairman is a Republican and given that Senator Cornyn is a former attorney general, former judge, and leader within the Republican caucus, I think Senator Cornyn is a particularly important figure in the bridge between Senator Lee and Chairman Grassley."

Wednesday, June 24, 2015

The title of this post is the (slightly modified) subheadline of this lengthy new Politico report, headlined "Riots spur Senate look at sentencing reform." Here are excerpts:

After the Baltimore and Ferguson riots ignited nationwide discussions of race and criminal justice, a bipartisan group of top Senators is making headway on a sentencing reform compromise to release well-behaved prisoners early and reduce some mandatory-minimums.

But the fledgling proposal — yet to be committed to paper — faces potential resistance from the wings of both parties: Liberals and libertarians who want it to go further, and tough-on-crime conservatives who fear that it lets convicts off the hook.

The group, led by Senate Judiciary Chairman Chuck Grassley (R-Iowa), is writing legislation to allow convicts with low risks of recidivism to earn time off their sentences. They’re also contemplating reductions to some nonviolent drug-related mandatory minimums — and maybe even increasing others on white-collar crime in the name of sentencing equality. Talks are ongoing.

The path forward is uncertain, however. Grassley must thread the needle between his colleagues like Sens. Rand Paul (R-Ky.) and Patrick Leahy (D-Vt.) — who say the war on drugs is dead and want to ditch mandatory minimums completely — and lawmakers like Sens. Marco Rubio (R-Fla.) and Jeff Sessions (R-Ala.), who are leery of ditching all such sentencing requirements and still back a tough-on-crime mindset that dominated the GOP in the 1980s and 1990s. It also marks a transition for Grassley, who’s never been a big advocate for reducing mandatory minimums and has been labelled an arch-nemesis of criminal justice reform by newspapers back home in Iowa.

“I have different views than Paul and those guys,” Grassley said in a short interview. “They’d make you believe [people are incarcerated] for smoking one pot or one ‘roach’ … But they’re not; they’re in for a lifetime of violent crime.” “But I know there needs to be reform,” he quickly added. “We need this.”

It’s a political gamble. On the one hand, the group risks being accused of writing a watered-down overhaul; on the other, lawmakers don’t want to be accused of letting convicts off too easily. Striking a balance between those two positions has been difficult in the past — and one of the reasons such legislation hasn’t been enacted in previous congresses.

“You’ve got to be very careful,” said Sessions, a former U.S. Attorney for the Southern District of Alabama who’s already skeptical of the burgeoning deal. He launched into a lecture: “Historic criminal justice reform in the early 1980s has led to this dramatic drop in the crime rate. I mean, the murder rate is less than half of what it was — and so [mandatory minimums were] a fundamental component… I don’t want us to go further than we should in reducing sentences.”

The new compromise package comes amidst heightened inter-racial tensions following the deaths of unarmed black men at the hands of police officers. And when a young white man murdered nine black churchgoers in Charleston, S.C., because of their skin color, the nation was again plunged into discussions of race relations. “My hope is that in light of what happened in South Carolina, we think beyond the symbolism of the [confederate] flag, to changes that really show we’re committed to fairness when it comes to racial equality,” said Democratic Minority Whip Dick Durbin (D-Ill.), who is part of the compromise group.

For supporters of sentencing reform, reform is needed in the name of equality. Many mandatory minimums disproportionately affect African Americans because they are used for sentencing drug-related crimes that plague predominately lower-income, urban populations. “We’re housing too many of our citizens who are committing nonviolent crimes,” said civil rights activist Rep. John Lewis (D-Ga.). “So many people, especially, low-income people who can’t hire lawyers — and it’s not fair.”...

Over the past few years, reform negotiations have been dominated by people like Paul and more libertarian-type Republicans, as well as Democrats such as Leahy. The pair have teamed up on legislation that effectively eliminates mandatory minimums by allowing judges to override them. But the idea of eliminating mandatory minimum makes people like Grassley and his co-Republican negotiator, Sen. John Cornyn, nervous.

“Having been a judge for 13 years and attorney general, my observation is we have to be careful,” Cornyn said during a Tuesday interview in his Senate office. “Even though people may be well intentioned, there could be very negative consequences.”

The package marries provisions of two bills that passed the Judiciary panel last Congress. The first, sponsored by Cornyn and Sen. Sheldon Whitehouse (D-R.I.), another member of the group, focuses on the back end of sentencing reform by letting inmates out early and giving them tools to assimilate back to normal life. The program would only be offered for prisoners considered to have a low risk of re-offending and who do not have prior convictions. Those who have committed more serious crimes such as rape, murder or terrorism wouldn’t be eligible.

“The people coming out of prison are better prepared to re-enter society and be productive as opposed to regressing back into their life of crime,” under the program, said Cornyn, who notes that states have found positive results by implementing these sorts of programs. In Texas, Cornyn’s home state, such reductions have allowed them to close three prisons, he says. The deal would also take a page out of a bipartisan bill called “Smarter Sentencing” that would reduce mandatory minimums for drug crimes.

The compromise would leave intact mandatory minimums on violent offences as well as convictions that involve the use of firearms (an important exception for Cornyn), importing heroin and cocaine (a requirement of Grassley’s), gang involvement and terrorism, among others. “It’s narrow category of drug sentencing… but it would have a dramatic impact on the population in our federal prisons,” Durbin said.

Critics like Leahy, however, are bound to have reservations because the bill likely won’t go far enough. “Passage of mandatory minimum sentencing laws has not made us safer, but it has driven our federal prison population to historic highs — a nearly 800 percent increase in 30 years,” the former Judiciary chairman said in late April, speaking to The Constitution Project. “I oppose all mandatory minimums.”

Leahy, one of the Democrats’ lead voices on this issue, also isn’t a fan of the Cornyn bill — ultimately abstaining from voting on the measure last year because he believes it will just exacerbate racial disparity with its “high risk,” “low” designations. Paul’s office would not weigh in on the package that’s still in the works.

Other lawmakers are taking the opposite tack. When asked about such a package, Sessions on Monday ranted about “safer streets … where children can be raised,” and likened the debate to a “pendulum that tends to swing.” Rubio has also written op-eds expressing reservations about getting rid of certain minimum sentence requirements. And Grassley, whose committee staff is taking the lead on the matter, is sympathetic to those worries. In fact, it’s ironic that Grassley — who was not invited to the White House when Obama hosted Republicans to discuss this issue — is taking the lead on the compromise. Back home, the Des Moines Register called him a “stumbling block remains stubbornly in place.”

But Grassley says he’s always favored reducing some minimum sentences. He also wants to increase others, however — placing him at odds with some Democrats he’s currently negotiating with. He’d like to increase mandatory minimums on white color crimes like fraud, he says.

While they applauded the idea of allowing prisoners to earn more time off their sentences, several Congressional Black Caucus members engaged in the criminal justice reform talks threw cold water on that particular pitch. “That’s not the way to do it,” said Rep. Hank Johnson (D-Ga.). “I would oppose that for the same reason I’m opposed to mandatory minimums on other crimes: They take discretion away from the judge and put too much discretion in the hands of the prosecution.” Rep. Keith Ellison (D-Minn.) said the idea would “clearly” addresses the question of equal treatment for black and white offenders, but he has “an objection to mandatory minimums beyond the equity question.”...

Other pieces of the package still up in the air include provisions limiting asset seizures, or funding police body cameras — but Grassley worries bringing those into the negotiations at this point may hinder talks.

Cornyn suggested the group would be open to changes in committee and on the floor — so long as they don’t take the bill too far off course from the direction it’s headed, he added. And despite potential pitfalls to come, Whitehouse seemed confident they could deliver: “There’s a sweet spot for people who support reconsideration of mandatory minimums… there is a sweet spot in the middle.”

Wednesday, June 17, 2015

Constitution Project gets 130 former judges, prosecutors and law enforcement officials on letter advocating for SSA

As reported here by The Constitution Project, "former judges and prosecutors from across the country are urging Congress to adopt the Smarter Sentencing Act." Specifcally, The Constitution Project organized "130 former judges, prosecutors and law enforcement officials" to sign this notable letter "delivered to members of the House and Senate Judiciary Committees on June 16."

As The Constitutional Project notes, included among "those signing the letter are Judge William S. Sessions, former director of the FBI; former state attorneys general from Illinois, Pennsylvania, Tennessee and Virginia; and former state Supreme Court justices from Florida, Georgia, Mississippi, Montana and Texas." And here is how the letter gets started:

As former judges, prosecutors and law enforcement officials, we write to express our support for critical reforms to federal sentencing contained in the Smarter Sentencing Act of 2015 (SSA), S.502/H.R.920. This bill is an important step in promoting public safety and addressing unintended and expensive consequences of existing federal sentencing laws.

Nationwide, law enforcement has made significant progress in curbing violent crime in our communities. At the federal level, we trust Congress to address the parts of our sentencing policies that are simply not working. Presently, mandatory minimum drug sentences unnecessarily apply to a broad sweep of lower level offenders. These include low-level, nonviolent people whose involvement in the offense is driven by addiction, mental illness, or both. Drug offenders are the largest group of federal offenders sentenced each year, now comprising nearly half of the federal prison population. Moreover, individuals most likely to receive a mandatory minimum sentence were street-level dealers, not serious and major drug dealers, kingpins, and importers. Indeed, of the 22,000 federal drug offenders last year, only seven percent had a leadership role in the crime and 84 percent did not possess or use guns or weapons. The U.S. Sentencing Commission and other experts have found little deterrent value in sentencing low-level offenders to lengthy mandatory minimum prison terms.

Additionally, over the past three decades, our spending on federal incarceration has increased by over 1100 percent. Despite this massive investment by taxpayers, federal prisons are now at 128 percent of their capacity, undermining staff and inmate safety and prisoner rehabilitation, as well as reducing the resources available for law enforcement and crime prevention. Incarceration and detention costs have nearly doubled over the last ten years, with the Bureau of Prisons’ (BOP) budget at its current level of $7.2 billion in the President’s Fiscal Year 2016 budget request. As a nation, we are expending enormous amounts of money, but failing to keep pace with our growing prison population.

Maintaining the status quo in federal sentencing policy is both fiscally imprudent and a threat to public safety. We are deeply concerned that spending on incarceration has jeopardized funding for some of our most important law enforcement priorities. The BOP budget now accounts for approximately a quarter of the U.S. Department of Justice’s (DOJ) discretionary budget, potentially undermining other DOJ law enforcement priorities. Indeed, in 2014, the BOP’s budget grew at almost twice the rate of the rest of the Department of Justice. With more resources going to incarcerate nonviolent offenders, funding for federal investigators and prosecutors is threatened. U.S. Attorneys’ Offices and the Drug Enforcement Administration have already lost hundreds of positions and resources for state and local law enforcement have significantly decreased. Law enforcement will continue to maximize its resources to keep our communities safe, but Congress created our sentencing scheme and needs to act to help solve these problems

Monday, June 08, 2015

The Washington Post has this lengthy article discussing the sentencing struggles of US District Judge Mark Bennett. The piece is headlined "Against his better judgment: In the meth corridor of Iowa, a federal judge comes face to face with the reality of congressionally mandated sentencing." Here are excerpts from the first part of the piece:

U.S. District Judge Mark Bennett entered and everyone stood. He sat and then they sat. “Another hard one,” he said, and the room fell silent. He was one of 670 federal district judges in the United States, appointed for life by a president and confirmed by the Senate, and he had taken an oath to “administer justice” in each case he heard. Now he read the sentencing documents at his bench and punched numbers into an oversize calculator. When he finally looked up, he raised his hands together in the air as if his wrists were handcuffed, and then he repeated the conclusion that had come to define so much about his career.

“My hands are tied on your sentence,” he said. “I’m sorry. This isn’t up to me.”

How many times had he issued judgments that were not his own? How often had he apologized to defendants who had come to apologize to him? For more than two decades as a federal judge, Bennett had often viewed his job as less about presiding than abiding by dozens of mandatory minimum sentences established by Congress in the late 1980s for federal offenses. Those mandatory penalties, many of which require at least a decade in prison for drug offenses, took discretion away from judges and fueled an unprecedented rise in prison populations, from 24,000 federal inmates in 1980 to more than 208,000 last year. Half of those inmates are nonviolent drug offenders. Federal prisons are overcrowded by 37 percent. The Justice Department recently called mass imprisonment a “budgetary nightmare” and a “growing and historic crisis.”

Politicians as disparate as President Obama and Sen. Rand Paul (R-Ky.) are pushing new legislation in Congress to weaken mandatory minimums, but neither has persuaded Sen. Charles E. Grassley (R-Iowa), who chairs the Senate Judiciary Committee that is responsible for holding initial votes on sentencing laws. Even as Obama has begun granting clemency to a small number of drug offenders, calling their sentences “outdated,” Grassley continues to credit strict sentencing with helping reduce violent crime by half in the past 25 years, and he has denounced the new proposals in a succession of speeches to Congress. “Mandatory minimum sentences play a vital role,” he told Congress again last month.

But back in Grassley’s home state, in Iowa’s busiest federal court, the judge who has handed down so many of those sentences has concluded something else about the legacy of his work. “Unjust and ineffective,” he wrote in one sentencing opinion. “Gut-wrenching,” he wrote in another. “Prisons filled, families divided, communities devastated,” he wrote in a third.

And now it was another Tuesday in Sioux City — five hearings listed on his docket, five more nonviolent offenders whose cases involved mandatory minimums of anywhere from five to 20 years without the possibility of release. Here in the methamphetamine corridor of middle America, Bennett averaged seven times as many cases each year as a federal judge in New York City or Washington. He had sentenced two convicted murderers to death and several drug cartel bosses to life in prison, but many of his defendants were addicts who had become middling dealers, people who sometimes sounded to him less like perpetrators than victims in the case reports now piled high on his bench. “History of family addiction.” “Mild mental retardation.” “PTSD after suffering multiple rapes.” “Victim of sexual abuse.” “Temporarily homeless.” “Heavy user since age 14.”

Bennett tried to forget the details of each case as soon as he issued a sentence. “You either drain the bathtub, or the guilt and sadness just overwhelms you,” he said once, in his chambers, but what he couldn’t forget was the total, more than 1,100 nonviolent offenders and counting to whom he had given mandatory minimum sentences he often considered unjust. That meant more than $200 million in taxpayer money he thought had been misspent. It meant a generation of rural Iowa drug addicts he had institutionalized. So he had begun traveling to dozens of prisons across the country to visit people he had sentenced, answering their legal questions and accompanying them to drug treatment classes, because if he couldn’t always fulfill his intention of justice from the bench, then at least he could offer empathy. He could look at defendants during their sentencing hearings and give them the dignity of saying exactly what he thought.

“Congress has tied my hands,” he told one defendant now. “We are just going to be warehousing you,” he told another. “I have to uphold the law whether I agree with it or not,” he said a few minutes later.

Tuesday, June 02, 2015

Spotlighting the role and importance of federal prosecutors in the drug war

Mona Lynch has this notable new op-ed in today's New York Times headlined "Reining In Federal Prosecutors." here are excerpts:

In recent months, police departments and prison systems have been taking heat for the systemic abuses that mar our nation’s justice system. But one key player has been notably absent: For decades, our federal court system has been quietly perpetrating some of the deepest injustices in the name of the war on drugs.

Federal laws passed at the height of our punitive frenzy in the 1980s have been abused by overzealous federal prosecutors to compel guilty pleas and obtain long, unjust prison sentences, especially against black drug defendants. We must rein in these practices if we are to reshape our country’s criminal justice system for the 21st century.

Prosecutors have a number of tools at their disposal, the most powerful of which is the “851,” which can be filed against those with prior drug convictions to at least double mandatory minimum sentences. In the worst case, a 10-year mandatory minimum becomes a life sentence without parole for a defendant with two prior convictions. The 851 statute was passed in 1970 to give prosecutors more discretion to seek harsh sentences against only the most serious offenders, and exempt lower-level defendants. But it has been deployed in exactly the opposite manner.

I have conducted in-depth qualitative research and interviews in four federal districts; in each, the 851 threat loomed for nearly everyone with the eligible prior record. In the words of one of my interviewees, “the 851 is the ultimate lever” used by prosecutors to force a guilty plea. And it almost always worked: Defendants were compelled to waive their rights and plead guilty to ensure that their sentences were not doubled, or worse.... [N]o entity tracks the threat or use of the 851 in drug cases. We do know, however, from qualitative research like mine and recent work by the United States Sentencing Commission that its coercive use has been pervasive.

Data also indicate that mandatory minimums and enhancements like the 851 have been disproportionately used against black defendants. While research shows that illicit drug use and distribution is generally proportionate to the racial makeup of the nation’s population, black people are overrepresented as drug defendants in federal courts, constituting 30 percent of all those sentenced for drug crimes, and a full two-thirds of those who receive life sentences.

Between 1992 and 2012, about 2,300 black men have been sentenced to life for federal drug convictions, 72 percent of whom had asserted their right to trial. While data cannot pinpoint the 851 as the trigger of those life sentences, it does indicate that 96 percent were subject to drug mandatory minimums at sentencing.

Some effort has been made to address the overzealous use of the 851 threat. In 2014, Attorney General Eric H. Holder Jr. directed prosecutors to refrain from using the 851 as a threat or inducement in plea negotiations. But while his directive has clearly changed behavior in some districts, the 851 threat remains alive in others.

As we grapple with the consequences of a three-decade-long law-and-order binge that has disproportionately affected black communities, we must repair the damage done in the past and prevent a repeat in the future. That means revisiting the unconscionably long sentences that keep Brandon and others behind bars for most or all of their lives, and it means removing hammers like the 851 from the prosecutors’ toolbox to prevent their future abuse.

Friday, May 22, 2015

Two notable voices from the (far?) right calling again for drug war and sentencing reform

The two recent stories about recent comments by notable advocates reinforce my sense that more and more traditional (and not-so-traditional) conservative voices are feeling more and more confortable vocally criticizing the federal drug war and severe drug sentencing:

Money Quotes: If you told me a year ago that I [Grover Norquist] would be speaking out in favor of one of Gov. Dannel P. Malloy's top priorities, I would have said you were crazy. The governor is a tax-and-spend liberal and I have spent my entire career fighting high taxes and wasteful government spending. Yet, just as a broken clock gets it right once in a while, Gov. Malloy is right about the need to reform mandatory minimum sentencing laws.

Contrary to their original intent, mandatory minimum laws have done little to reduce crime. They have, however, been significant drivers of prison overcrowding and skyrocketing corrections budgets. That's why conservatives and liberals in Washington, D.C., and in statehouses all across the country are coming together to repeal and reform these one-size-fits-all laws. Oklahoma, Georgia, South Carolina, Texas and Florida are just a handful of the states where conservatives have not simply supported, but led, the efforts to scale back mandatory minimum sentences.

Conservatives in Connecticut should support the governor's mandatory minimum proposals for two reasons. First, the reforms are very modest — addressing only drug possession. In some states, such as Connecticut's neighbor, Rhode Island, and Delaware, lawmakers have repealed mandatory minimum sentences for all drug offenses. Still more states have enacted significant reform to their drug mandatory minimum laws so that judges have discretion to impose individualized sentences that fit the crime. In all of these states, crime rates have dropped.

Conservatives in Connecticut also should embrace sentencing reform because of the state's awful budget mess. For too long, fiscal hawks have turned a blind eye to wasteful law enforcement spending. Not wanting to appear "soft on crime," they have supported every program and policy to increase the prison population without subjecting those ideas to cost-benefit analysis.

Those days are over. After watching state spending on prisons skyrocket more than 300 percent over the last two decades, state leaders across the country seem to understand that they can no longer afford to warehouse nonviolent offenders in prison.

Money Quotes: Today on Glenn Beck's radio (and TV) show, I [Jacob Sullum] debated marijuana prohibition with Robert White, co-author (with Bill Bennett) of Going to Pot: Why the Rush to Legalize Marijuana Is Harming America. The conversation turned to the war on drugs in general and also touched on federalism, the Commerce Clause, the nature of addiction, and the moral justification for paternalistic interference with individual freedom. Reading from my recent Forbes column, Beck said he is strongly attracted to the Millian principle that "the individual is sovereign" over "his own body and mind," which rules out government intervention aimed at protecting people from their own bad decisions. "I'm a libertarian in transit," he said. "I'm moving deeper into the libertarian realm.... Inconsistencies bother me." By the end of the show, Beck was declaring that the federal government should call off its war on drugs and let states decide how to deal with marijuana and other psychoactive substances.

Addendum: Marijuana Majority's Tom Angell notes that Beck indicated he favored marijuana legalization back in 2009, saying, "I think it's about time we legalize marijuana... We either put people who are smoking marijuana behind bars or we legalize it, but this little game we are playing in the middle is not helping us, it is not helping Mexico and it is causing massive violence on our southern border... Fifty percent of the money going to these cartels is coming just from marijuana coming across our border." As far as I know, however, this is the first time Beck has explicitly called for an end to federal prohibition of all the other currently banned drugs.

Tuesday, May 19, 2015

Debate over harms of online drug market now at center of upcoming sentencing of Silk Road creator Ross Ulbricht

As reported in this Wired piece, headlined "Ahead of Sentencing, Ulbricht Defense Argues Silk Road Made Drug Use Safer," the defense in a notable drug sentencing case is making a notable new claim about the nature and consequences of the defendant's drug dealing methods. Here are the details:

When a jury convicted Ross Ulbricht three months ago of running the Silk Road, it closed the legal question of whether he was guilty of masterminding that billion-dollar online black market for drugs. But as Ulbricht’s sentencing approaches, his defense is opening another ethical question that may be far more societally important: Did the Silk Road’s newly invented method of narcotics e-commerce actually reduce the risks of drug use?

In a memo to judge Katherine Forrest filed Friday afternoon, Ulbricht’s defense has asked her to consider the Silk Road’s potential for “harm reduction” when she determines Ulbricht’s sentence in less than two weeks. The memo argues that the Silk Road’s community provided drug users a more reliable way to buy untainted drugs, that Ulbricht had expressly tried to encourage “safer” drug use on his black market site, and that the digital nature of the site’s commerce may have protected users from physical interactions that in the traditional drug trade often lead to violence.

“In contrast to the government’s portrayal of the Silk Road web site as a more dangerous version of a traditional drug marketplace, in fact the Silk Road web site was in many respects the most responsible such marketplace in history, and consciously and deliberately included recognized harm reduction measures, including access to physician counseling,” writes Ulbricht’s lead defense attorney Joshua Dratel in the filing. “In addition, transactions on the Silk Road web site were significantly safer than traditional illegal drug purchases, and included quality control and accountability features that made purchasers substantially safer than they were when purchasing drugs in a conventional manner.”

The memo argues that the Silk Road’s community provided drug users a more reliable way to buy untainted drugs. One of the Silk Road’s innovations, after all, was to bring an eBay-like system of ratings and reviews for online drug sales. That system gave buyers a way to quickly weed out dealers selling lower quality or less pure substances. The site maintained a section of its user forum devoted to safer drug use, where users could ask each other for advice and help with health problems. And Ulbricht’s defense points to archived messages showing that Ulbricht even offered at one point to pay $500 a week to a Spanish doctor, Fernando Caudevilla, who frequented the forum and answered users’ questions. Ulbricht also asked Caudevilla if he’d be willing to chemically test drugs on the site for quality, though it’s not clear if that testing scheme was ever put into practice.

Regardless, Ulbricht isn’t likely to receive a light sentence. The 31-year-old Texan was convicted of seven felony charges in February that include conspiracies to traffic in narcotics and money laundering, as well as a “kingpin” statute reserved for the leaders of organized criminal operations, which could add another decade to his prison time. In all, he faces a minimum of 30 years in prison and a maximum of life. Ulbricht’s defense team has already said it plans to appeal the case.

The prosecution in Ulbricht’s case has revealed that it plans to present at Ulbricht’s sentencing hearing six cases of individuals who died from overdoses of drugs bought on the Silk Road. But in its Friday filing, the defense addressed and rebutted each of those examples. In a grisly section of a separate memo, it goes through the details of those six deaths, in each case arguing that the deceased suffered from earlier health conditions and questioning whether the death-inducing drugs had actually been bought from vendors on the Silk Road. “It is simply impossible for the government to prove that drugs obtained from Silk Road ‘caused’ death, and in certain cases, the government cannot even establish to any degree of certainty that any of the drugs ingested came from Silk Road,” Dratel writes....

To bolster its argument about the societal benefits of the Silk Road, the defense includes in its filing sworn statements from a series of experts, including Tim Bingham, the administrator of an addiction-focused non-profit known as the Irish Needle Exchange Forum, and Meghan Ralston, the former director of harm reduction for the Drug Policy Alliance. Bingham, for instance, published three studies in the International Journal of Drug Policy about the Silk Road based on surveys of users. He writes in his statement that he “concluded that Silk Road forums…appeared to act as an information mechanism for the promotion of safer and more acceptable or responsible forms of recreational drug use.”

Is a former lobbyist and former federal prisoner likely to be a uniquely good sentencing reform advocate?

Kevin Ring helped write a bill in the 1990s that toughened penalties for methamphetamine charges. Now, recently out of prison, the former Team Abramoff lobbyist says he wants Congress to overhaul the nation’s justice system and to undo mandatory minimum requirements altogether.

His own effort comes at a pivotal time for the issue on Capitol Hill, where bipartisan measures (S 502, HR 920) to reduce stiff sentencing requirements for drug charges appear to be gaining some traction.

Ring, a former Hill aide, is wrapping up his 20-month sentence for an honest services fraud conviction by serving home confinement that allows him to work in downtown Washington, D.C. He is drawing on his K Street and criminal justice experiences at Families Against Mandatory Minimums, an advocacy group devoted to peeling back the same sort of laws he helped push through while serving as a Senate Judiciary Committee staffer.

“We wanted to look tough on meth,” said Ring, a Republican, who recently started working full-time as FAMM’s new director of strategic initiatives. “The Hill is run by too many 20-year-olds with a lot of opinions and not enough experience, and I was part of that. I didn’t have enough experience to write criminal statutes. What did I know?”

Ring is a former colleague of ex-K Street power player Jack Abramoff, and like Abramoff he went to the federal prison camp in Cumberland, Md. Ring started working with FAMM part-time five years ago, doing grant writing. He’d already lost two jobs at K Street firms amid the unraveling Abramoff scandal, and he needed work. He had to terminate all outside employment during his prison term.

“When he first interviewed with us, he was incredibly humble, hat in hand, and said, ‘I’m about to be indicted,’” recalled Julie Stewart, FAMM’s president and founder and a self-described libertarian. “I immediately realized what an incredible gem we had in Kevin because of his conservative background. It was very clear to me that Kevin could do so much good for FAMM and for our issue and promoting it in a voice that could really be heard by the people we were trying to influence on the Hill.” FAMM, she noted, is a rare organization that gets funding from conservative David Koch and liberal George Soros.

Ring, 44, said he doesn’t expect he will meet the legal definition of a lobbyist at FAMM, but he intends to write op-eds, congressional testimony and advocacy letters. In short, he plans to influence the process largely from the background. It's not likely to be an easy sell.

Even as the White House and Republicans on the Hill, including Sen. Mike Lee of Utah and Rep. Raúl R. Labrador of Idaho, are championing sentencing overhaul legislation, such proposals are far from a fait accompli. Senate Judiciary Chairman Charles E. Grassley of Iowa has pushed back on criticism that he is blocking sentencing legislation, but he’s made clear his support would come with a price....

Grassley, in a recent speech at the Press Club, said white-collar criminals such as Ring receive "paltry sentences." He has suggested such criminals ought to be subject to mandatory minimums in exchange for reduced minimums for nonviolent drug offenders. "The last thing we need is to take away a tool that law enforcement and prosecutors use to get the bad guys," Grassley said.

His spokeswoman, Beth Levine, said Grassley’s staff and aides to the lawmakers pushing for sentencing legislation “have been sitting down to work something out.”

FAMM, as well as Ring, opposes new mandatory minimum requirements for white-collar crimes. “It’s an awful, awful idea,” Ring said during an interview last week in FAMM’s offices near Metro Center. “Even without mandatory minimums, prosecutors can threaten you with such a long sentence that you want to plead guilty.”

He said the mandatory minimums have inflated sentencing guidelines across crimes, even those not subject to mandatory sentences. In Ring’s case, prosecutors asked the judge to sentence him to at least 20 years in prison. He said even his current home confinement, which includes a GPS ankle tracker to monitor his location 24 hours a day, is surprisingly restrictive and ought to be used more for nonviolent offenders — keeping them out of the prison system and allowing them to continue to work, pay taxes and care for their children.

It’s a message that resonates with budget-conscious Republicans, especially those with a libertarian stance. Stewart, who started FAMM 24 years ago, when her brother went to federal prison for growing marijuana in Washington state, said the current conversation on Capitol Hill and across the country is unprecedented. “My one fear is that talk is cheap,” she said. “It’s going to be a push.”

And Ring will be right in the middle of it. “I believed it before, and now I just feel like I’m better informed for having had the experience,” Ring said. “You know I wouldn’t wish the experience on anyone, but now that I have it, I feel compelled to say what I saw. So that goes to not only how prosecutions work, how sentencing works, but then also how prisons work or don’t work.”

Sunday, May 10, 2015

Florida prosecutor says he will not seek 15-year prison terms for sex-on-beach convictions

As noted in this recent post, "Imprisonment for 15 years for sex on the beach?!?! Really?!?!," at least one member of an indecent couple in Florida seemed to be facing an indecent prison sentence for some shoreline dirty dancing. But this local article, headlined "State attorney won't seek 15-year prison sentences for Bradenton Beach sex-on-the-beach couple," now suggests that prosecutors are going to be seeking a much less extreme sanction for these miscreants. Here are the latest details:

State Attorney Ed Brodsky said Thursday he will not seek the maximum possible punishment — 15 years in prison — for the couple convicted of having sex in public on Bradenton Beach.

Brodsky, elected state attorney for the 12th Judicial District, said his office never intended to seek the maximum 15-year sentence against Jose Caballero, 40, or Elissa Alvarez, 20, for having sex on Cortez Beach in July.

The couple was found guilty Monday on charges of lewd and lascivious exhibition after a video played in court showed Alvarez moving on Caballero in a sexual manner. Witnesses testified a 3-year-old girl had seen the couple.

The charge carries a maximum sentence of 15 years in prison, and requires both to register as sex offenders. "It was never our intention to seek 15 years for either of them," Brodsky said. "That's not a reasonable sentence."

Defense attorney Ronald Kurpiers said because Caballero served a previous prison sentence for cocaine trafficking within the past three years and the prosecution had filed prison release reoffender paperwork, Caballero would be sentenced to the maximum sentence of 15 years under Florida's prisoner release reoffender law.

Kurpiers said if Brodsky was saying they weren't seeking 15 years, it meant they had withdrawn the PRR. "I've never experienced that before in all my years in law," Kurpiers said. "I'm honestly emotional about it. That was a huge hurdle."

Brodsky said he wasn't willing to discuss what kind of sentences they will seek and a sentencing hearing hasn't been scheduled. Kurpiers said the judge would now have some discretion instead of an automatic sentence for Caballero. Kurpiers said he would try to have the sentence lowered. "I need to get out my knee pads so I can get down and beg," Kurpiers said.

Brodsky refuted the claim he would be seeking the maximum punishment after Families Against Mandatory Minimums, a Washington, D.C.-based interest group that fights mandatory minimum prison sentences, said they called his office Thursday to urge prosecutors not seek 15 years in prison for Caballero.

"As outrageous as Mr. Caballero's behavior was, it would be even more outrageous for the state to make him spend 15 years in prison," said Julie Stewart, president and founder of the organization, in a release. "As a parent, I would not want my children to see people having sex on a public beach in the middle of the day. But as a taxpayer, I would be even more offended to waste hundreds of thousands of dollars to punish Mr. Caballero's irresponsible behavior."...

A campaign was also launched Thursday on Causes.com titled: "Free couple facing 15 years in prison for sex on the beach." Led by Vitor Ribeiro, whose Facebook account lists Portugal as home, the campaign received more than 500 signatures by early Thursday evening. "Having sex on the beach is not a crime worthy of such a barbaric sentence," reads the campaign's subtitle.

Stewart said the state plea offer to Caballero for two and a half years in prison prior to the trial was evidence it didn't believe he deserved 15 years for the crime. Brodsky confirmed they had made the plea offer, and Caballero chose to reject it to go to trial. Kurpiers said he "strongly recommended" his clients take the plea deal, but ultimately it was their choice to refuse....

Alvarez and Caballero are in the Manatee County jail awaiting sentencing.

Beyond its prurient elements, this case provides a notable case-study in the import and impact of mandatory minimum sentencing schemes and the sentencing power mandatory minimums necessarily place in the hands of prosecutors.

For starters, I doubt the defense attorney would have "strongly recommended" that one defendant accept a 2.5-year prison sentence for merely having sex on the beach absent the threat of a 15-year mandatory prison term if the defendant exercised his right to go to trial. How could and would a defense attorney reasonably tell a client that a long prison term is a reasonable offer for this behavior and giving up all rights to challenge the state's case absent the threat of a much more extreme mandatory prison term if convicted after a trial?

Next, as I understand Florida law in this setting, the only reason now that defendant Caballero will not get 15 years in state prison is because the prosecutor now has decided to, in essence, nullify the Florida "prison release reoffender" (PRR) law by taking back the paperwork needed to invoke its mandatory sentencing consequences. Absent the media scrutiny that this case has come to generate, would the prosecutor likely have been so quick to say he never sought an extreme 15-year PRR sentence for Caballero?.

Critically, if the prosecutor never thought this was a proper PRR case, why did the prosecutor initially file the PRR paperwork in the first instance against Caballero? Is there likely any reason other than to to try to force a plea deal through the threat of an extreme mandatory prison sentence — a threat which would essentially require the defense attorney to "strongly recommended" that defendant Caballero accept the 2.5-year prison sentence offered by the prosecutor?

Finally, only when the defendants exercised their right to trial — and thereafter likely only because this case started to garner attention — do we now here the prosecutor say on the record that a 15-year term was never sought and would not be reasonable. In other words, only once the media saw the prosecutor with his hand in the extreme mandatory-sentencing cookie jar did he pull his hand out and say he never really wanted that 15-year prison term for Caballero.

It is reassuring to see that media attention can and will sometimes prompt a prosecutor in an individual case to exercise his power and discretion to take an extreme mandatory sentence of the table after a trial conviction. But these problems only arise because of the existence of extreme and broad mandatory minimums, and that is why I generally believe such laws make for bad public policy because I think our sentencing system should incorporate true checks-and-balances rather than be functionally controlled by executive branch fiat.

Friday, May 08, 2015

This new editorial from the Des Moines Register, headlined "Grassley should not block sentencing reforms," highlights that some notable folks are frustrated by Senator Charles Grassley's apparent unwillingness to move forward significantly with federal sentencing reforms proposed by his colleagues. Here are excerpts:

Amid hysteria over growing use of illegal drugs 30 years ago, Congress passed tough new criminal laws carrying long mandatory prison sentences. Regardless of whether mandatory sentences had any effect on drug abuse, they have contributed to a 500 percent increase in the federal prison population and a 600 percent increase in federal prison spending.

Besides filling prisons and imprisoning a generation of largely minority males from inner cities, these one-size-fits-all sentences tie the hands of judges who should tailor penalties to the unique circumstances of individual defendants. And this obsession with criminalizing drug use has diverted resources that instead should be used to help people overcome their addictions.

Something extraordinary has happened recently, however: A consensus has emerged that this nation has put far too many people behind bars, and in the process it has created an unemployable underclass with criminal records. That consensus includes a remarkable cross-section of politicians from both ends of the political spectrum, along with religious leaders, corporate executives and opinion leaders.

While there is growing bipartisan support in Congress for changing the mandatory-minimum sentencing law, one potential stumbling block remains stubbornly in place: U.S. Sen. Charles Grassley, who as chairman of the Senate Judiciary Committee is in a position to allow federal sentencing reforms to move forward.

Grassley’s rhetoric has not encouraged optimism. He was dismissive and defensive when a “Smarter Sentencing Act” was introduced in March with the support of senators ranging from Republicans Ted Cruz of Texas and Rand Paul of Kentucky to Democrats Dick Durban of Illinois and Patrick Leahy of Vermont. He referred to supporters of the sentencing reform bill in a floor speech as the “leniency industrial complex.”

Although he recently seemed to soften his tone, saying he is “ready to address some of these issues,” Grassley has ruled out any across-the-board cut in mandatory minimum sentences. Three Iowa bishops in a guest opinion published by the Register May 1 called on him to support sentencing reform, but he promptly responded with an opinion piece that amounted to a full-throated defense of mandatory minimum sentences.

The argument in favor of mandatory sentences is that the prospect of spending decades in prison gives prosecutors leverage to get lower-tiered dealers to produce evidence against “drug kingpins.” But this gives prosecutors enormous power to force defendants to plead guilty, and with no prior involvement of a judge in open court.

Despite the assertion that mandatory sentences are aimed at putting away drug lords, “offenders most often subject to mandatory minimum penalties at the time of sentencing were street-level dealers — many levels down from kingpins and organizers,” according to research by the U.S. Sentencing Commission....

This nation’s war on drugs focused on criminal punishment instead of treatment has been a complete failure. At long last there is growing support for changing that. Iowa’s senior senator should not stand in the way.

Wednesday, May 06, 2015

Imprisonment for 15 years for sex on the beach?!?! Really?!?!

I had heard earlier this week about the Florida couple getting into criminal trouble for having sex in public on a beach, but only this morning have I focused on the reality that, thanks to Florida's severe recidivist sentencing laws, it appears that one of the defendants may have to serve 15 years(!!) in state prison for this crime. This local story, headlined "Couple found guilty of having sex on Florida beach," explains:

A jury Monday found a couple guilty of having sex on Bradenton Beach after only 15 minutes of deliberation. The convictions carry a maximum prison sentence of 15 years.

Jose Caballero, 40, and Elissa Alvarez, 20, were charged with two counts each of lewd and lascivious behavior for having sex on a public beach on July 20, 2014. Video played in the courtroom during the 1- 1/2-day-long trial showed Alvarez moving on top of Caballero in a sexual manner in broad daylight. Witnesses testified that a 3-year-old girl saw them.

Both Caballero and Alvarez will now have to register as sex offenders.

A sentencing date was not announced, but Assistant State Attorney Anthony Dafonseca said they will pursue a harsher sentence for Caballero than Alvarez, since Alvarez has no prior record and Caballero has been to prison for almost eight years for a cocaine trafficking conviction.

The state will ask for jail time for Alvarez and prison time for Caballero. Dafonseca said due to Caballero being out of prison less than three years before committing another felony, he's looking at serving the maximum time of 15 years. "We gave them a reasonable offer, what we felt was reasonable, and they decided it wasn't something they wanted to accept responsibility for," Dafonseca said. "Despite the video, despite all the witnesses."

Ronald Kurpiers, defense attorney for the couple, said his clients were "devastated," by the verdict. Though Dafonseca hinted that they'd be speaking with the judge about whether or not 15 years was appropriate for Caballero, Kurpiers said the judge would have no discretion. "That's what he'll get," Kurpiers said.

Ed Brodsky, elected state attorney for the 16th judicial district, joined Defonseca in prosecuting the case. When asked why the case was an important one to the state attorney, Dafonseca said it was important that the community knew what wouldn't be tolerated on public beaches. "We're dealing with basically tourists, that came from Brandon and Riverview and West Virginia, and they're here on the beaches of Manatee County, our public beaches," Dafonseca said, referring to the witnesses. "So you want to make sure that this isn't something that just goes by the wayside. And that it is well known to the community, what will be tolerated and what won't be."

Family members who witnessed the act and a Bradenton Beach police officer, as well as Caballero, testified in the case. The defense argued that the two weren't actually having sex, but that Alvarez had been dancing on Caballero or "nudging" him to wake him up. "She wasn't dancing," Dafonseca said during closing arguments. "It's insulting your intelligence to say that she was dancing."

Kurpiers said since the witnesses had not seen genitals or penetration, and neither was visible in the video, either, that saying the two had sex was speculation. "You folks cannot speculate," Kurpiers told the jury. "And in order to say they had intercourse, you would have to speculate."

Brodsky said they weren't calling it the crime of the century, but it was still a violation of Florida law. "Did they try to cuddle, or do it discreetly? Did they go in the water, where people couldn't see?" Brodsky asked the jury. "Did Ms. Alvarez try to drape a towel over herself, or anything? They didn't care."

I do not know Florida sentencing law well enough to know if defendant Caballero is in fact going to have to be sentenced and actually going to have to serve a decade or more in state prison for his misguided dirty dancing on a public beach. This press report makes it sound as though perhaps there may be some means for the sentencing judge to impose a lesser sentencing term, and I think a constitutional challenge based on the Eighth Amendment might also be viable here if state law really does mandate such a severe term in this case.

In addition to wondering whether and how Florida sentencing law may provide the judge with some sentencing discretion in this setting, I especially wonder about the terms of the "reasonable offer" that prosecutors offers to resolve this case via a plea deal. Specifically, I wonder if the offer required either or both defendants to serve significant time incarcerated and required sex offender registration. Especially given all the housing restrictions on registered sex offenders in Florida, that component of any conviction may have led to the defendants being especially eager to try to fight the charges.

Tuesday, May 05, 2015

As noted in this prior post, a few month ago the Oklahoma House passed by a significant margin a state Justice Safety Valve Act authorizing state judges to give sentences below otherwise-applicable mandatory minimums. Now, as effectively reported via this FreedomWorks posting, this notable sentencing reform has become law. The piece is headlined "Oklahoma becomes the latest Republican state to enact meaningful justice reforms," and here are the details (with links from the original).

Introduced in February by state Rep. Pam Peterson (R-Tulsa), the Justice Safety Valve Act, HB 1518, is aimed at reducing the rate of incarceration in the Oklahoma, which is among the highest in the United States. The bill allows sentences below mandatory minimums if a judge determines, based on a risk assessment, that a nonviolent offender is not a public safety risk. The bill would allow the state to save much-needed bed space for dangerous criminals.

"Our prison bed space is being taken up with people who don’t need to be there," Peterson told NewsOK.com in February. "These people are breaking the law, but I think we’ve gone to the point now where we need that space for violent offenders and are filling it up with too many nonviolent offenders."

"The courts' hands are often tied because of these mandatory minimums," she said. “Longer sentences do not equate to public safety.”

HB 1518 passed both chambers of the Republican-controlled Oklahoma State Legislature with relative ease. The House approved the bill in March by a 76 to 16 vote. The Senate followed suit in late April, passing the bill in a 31 to 13 vote. Fallin, a Republican, signed the bill on Monday.

In her State of the State address delivered in February, Fallin urged lawmakers to get "smart on crime," offering support for alternatives to incarceration for nonviolent offenders. Incarceration, she explained, actually increases the likelihood that an offender will continue a cycle of crime.

"Personal and community safety remain top priorities, and violent criminals will continue to be incarcerated. But the fact is, one in eleven Oklahomans serve time in prison at some point in their lives. Many of our current inmates are first time, nonviolent offenders with drug abuse and alcohol problems. Many also have mental health issues they need treatment for," said Fallin. "For some of these offenders, long sentences in state penitentiaries increase their likelihood of escalated criminal behavior.

"Oklahoma must ramp up its 'smart on crime' policies, including the Justice Reinvestment Initiative, designed to intervene for low-risk, nonviolent offenders and more readily offer alternatives such as drug-courts, veterans courts and mental health courts," she continued. "Implementation of coordinated 'smart on crime' efforts between state and local governments and tribal nations has demonstrated significant cost savings and improved outcomes for offenders and public safety."...

"It costs the state around $19,000 a year to house an inmate, but only $5,000 a year to send an addict through drug court and on to treatment," Fallin explained. "In addition to being less expensive, it’s also more effective; the recidivism rate for offenders sent to drug court is just one-fourth of the rate for those sent to prison."

Friday, May 01, 2015

Last week, US Senator Charles Grassley spoke at the Iowa Faith & Freedom Coalition Forum, and the Faith & Freedom Coalition asserts here that its beliefs are rooted in the view "that the greatness of America lies not in the federal government but in the character of our people — the simple virtues of faith, hard work, marriage, family, personal responsibility, and helping the least among us." If Senator Grassley really shares this view, I would expect him to be significantly moved by this new Des Moines Register op-ed authored by clergy members headlined "Bishops call on Grassley to reform sentencing." Here are excerpts:

As bishops and as Christians, we are called to love and serve all people, share compassion and aid God's most vulnerable children. That is why we were among 130 of Iowa's faith leaders who last week signed a letter [available here] delivered to Iowa Sen. Chuck Grassley, the leader of the U.S. Senate Judiciary Committee. The letter advocates for sentencing reforms that affect men and women in federal prison for non-violent drug offenses.

We abhor the damage and death caused by addictive drugs. Too many Iowa families are in pain because of drug addiction, particularly from heroin. We seek to aid these families and the addicted, by supporting broader access to drug treatment, counseling and medical care. Incarceration is not an appropriate treatment for curing drug addiction.

We believe in accountability for the men and women responsible for selling illegal drugs. Those who are addicted themselves and sell drugs to support their habit should also have access to rehabilitative services. Punishment for distributing drugs is necessary; however, where we seek to influence our elected leaders is in how much punishment is justified.

Under federal law, people convicted of drug offenses are subject to strict mandatory minimum sentences based largely on the quantity of drugs possessed by the defendant. Judges have limited discretion to sentence below a mandatory sentence, even when evidence supports doing so.

For example, Mason City native Mandy Martinson received a mandatory 10-year drug sentence in 2004 for her affiliation with a boyfriend who sold marijuana and methamphetamine. She received an additional five years because two firearms were found in their home. At her sentencing hearing, the judge stated that "the evidence demonstrated that [Martinson] was involved due to her drug dependency and her relationship with [her boyfriend] and that she was largely subject to his direction and control. ... Upon obtaining reasonable drug treatment and counseling and in the wake of what she is facing now, the Court does not have any particular concern that Ms. Martinson will commit crimes in the future." Despite the judge's assessment, he had no choice but to sentence her to 15 years in federal prison.

Martinson remains in prison today, but we believe she has been in prison long enough. She is joined by nearly 100,000 people — most of whom are non-violent — serving excessive sentences in federal prisons for drug offenses. We recognize no simple solutions exist when it comes to protecting liberty and public safety, and crime demands accountability. However, a "lock em' up and throw away the key" philosophy actually undermines both of these values. Mandatory minimum sentences do not allow for consideration of an individual's experiences that led them to crime, nor to consider their age, mental capacity, or ability to learn their lesson and redeem themselves....

As many of chaplains and prison ministry volunteers know, prison overcrowding makes it difficult to operate effective faith-based and other rehabilitation programs that are proven to reduce recidivism and make our communities safer. Finally, there is an intangible expense paid by family members, particularly children, who must cope with the pain and burden of having a loved one incarcerated for far too long. Among the saddest of statistics is that some 10 million young people have had a mother or father — or both — spend time behind bars at some point in their lives.

As Iowans, we are privileged to have Senator Grassley hold unique influence in the trajectory of America's sentencing policy. We hope he will use this authority to enact drug sentencing reforms that are more appropriate, will reduce the prison population and take into account the complicated factors that lead people to sell drugs.

In the meantime, we pray for the thousands of Iowans still behind bars, their families and the many thousands more who will be subject to extreme sentencing policies in years to come if lawmakers choose not to act. Those prayers and our advocacy efforts are the best things we can do for them. Now it is time for our elected leaders to do their part.

I strongly share the view that "the greatness of America lies not in the federal government but in the ... people" and that the "virtues of faith, hard work, marriage, family, personal responsibility, and helping the least among us" should inspire the work of all government officials. To that end, if Senator Grassley is truly committed to these virtues, I hope he takes to heart the advice given by these faith leaders to move forward ASAP on "drug sentencing reforms that are more appropriate, will reduce the prison population and take into account the complicated factors that lead people to sell drugs."

Notably, as highlighted in this recent post about recent criminal justice reform essays from GOP leaders, a large number of leading GOP candidates seeking to become president seem to share the view that federal drug sentencing needs to be reformed ASAP. Senator Ted Cruz, for example, has said this is simply a matter of common sense. If that is true, I am not sure what Senator Cruz would call Senator Grassley's seemingly steadfast opposition to various drug sentencing reforms proposals that have garner lots of support from lots of different quarters.

Tuesday, April 28, 2015

Senator Grassley yet again says he is open to some federal sentencing reforms

As reported in this new Washington Times article, "Senate Judiciary Committee Chairman Chuck Grassley on Monday said he supported looking into sentencing reform." Here is more of this (not-quite-new) news:

Mr. Grassley, Iowa Republican, has long opposed reducing mandatory minimums, and was seen as a barrier to advancing any sort of sentencing reform legislation while at the committee’s helm. “Over the last several months, I’ve been accused of being a roadblock to sentencing reform. Let me be clear. I have told my colleagues and the White House that I’d like to sit down and talk about how we can move forward,” Mr. Grassley said in prepared remarks Monday, where he laid out his committee’s priorities for the session. “I’m ready to address some of these issues.”

He reiterated that he wasn’t willing to do “an across-the-board cut in mandatory minimums,” but did agree that some should be cut, and perhaps some should be raised, such as for those who commit white-collar crimes. Mr. Grassley also spoke about the need for his committee to look into indigent defendants who are not provided with legal counsel, as the Constitution requires, when they are arrested on misdemeanors and may face jail time....

Mr. Grassley’s stance aligns him with more liberal and libertarian groups, who have long advocated civil justice reforms. In February, Koch Industries, which is led by the billionaire conservative kingmaker Charles Koch, formed a coalition with the Center for American Progress — a bitter adversary on economic and tax issues — to champion proposals to reduce prison populations, reform sentencing guidelines and reduce people’s lapses back into criminal behavior....

The effort has been building traction in Congress with libertarian-leaning republicans such as Utah’s Mike Lee, and Kentucky’s Rand Paul, joining with liberals including Sens. Dick Durbin and Patrick Leahy. Those efforts were expected to face an uphill climb with Mr. Grassley, who took to the Senate floor this year to say the system wasn’t sending a huge uptick of nonviolent drug offenders to prison under lengthy mandatory minimums, and criticized the Senate proposal to change sentencing laws as possibly reducing sentences for terrorists who used drug trafficking to finance terrorism....

Earlier this month, faith leaders in Iowa encouraged Mr. Grassley to embrace the various bipartisan bills in front of him and encouraged reintegration of people returning from prisons and jails. A group of more than 100 pastors, reverends, bishops and other faith leaders suggested in an April 20 letter that Mr. Grassley limit disproportionate sentences “particularly for drug offenses.” “We believe justice can be better served and proportionality restored by lowering penalties,” the letter states. The unnecessarily lengthy incarceration of people with drug offenses has burdened the federal criminal justice system and produced increasing costs that are unsustainable.”

On Monday, Mr. Grassley seemed willing to negotiate — or at least sit down and listen to their concerns. “I told a lot of people that are for sentencing reform that I want to sit down and talk to them,” said Mr. Grassley. “There is some talk going on, I don’t know how far its progressed at this point, at the staff level. But yes, I’m willing to do some legislation in that area.”

Mr. Grassley also said he supported having video cameras in the Supreme Court and wanted to examine the fairness of asset forfeiture by the police and federal law enforcement. In addition, Mr. Grassley plans to introduce a Juvenile Justice and Delinquency Prevention Act reauthorization bill this week. The bill, he said, has the support of Sen. Sheldon Whitehouse, the ranking member of the Senate Judiciary subcommittee on crime and terrorism.

The full speech by Senator Grassley delivered yesterday at the National Press Club Newsmakers News Conference is available at this link. As highlighted in prior posts linked below, these comments from Senator Grassley do not reflect any major change of position, but it does reinforce my belief that any and all persons seriously committed to serious federal sentencing reforms need to figure out just what kinds of reforms Senator Grassley is prepared to support or allow to get to a vote in his critical committee.

Tuesday, April 21, 2015

The title of this post is the title of this notable new and timely paper concerning the potential impact of the Supreme Court case re-argued yesterday. The piece is authored by Leah Litman, and here is the abstract:

This Essay examines the impact a favorable decision in Johnson v. United States could have at the various stages of post-conviction relief for three categories of prisoners -- prisoners whose convictions have not yet become final; prisoners whose convictions have become final but who have not yet filed a petition seeking post-conviction relief; and prisoners whose convictions have become final and who have already filed at least one petition seeking post-conviction relief. In doing so, it offers a reading of the relevant cases and statutes that permits any defendant sentenced under the Armed Career Criminal Act to obtain relief based on a decision invalidating the residual clause. It also highlights some under-explored statutes and doctrinal questions that courts will confront as they determine which prisoners should be resentenced in light of Johnson.

Monday, April 20, 2015

Most casual Supreme Court fans are surely looking ahead to next week's oral arguments in the same-sex-marriage and lethal injection cases. But this week brings two other exciting and intricate cases before SCOTUS for federal criminal justice fans, as these SCOTUSblog brief summarizes reveal:

Johnson v. US, No. 13-7120: Whether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act [and whether ACCA's residual clause is unconstitutionally vague].

McFadden v. US, No. 14-378: Whether, to convict a defendant of distribution of a controlled substance analogue -- a substance with a chemical structure that is “substantially similar" to a schedule I or II drug and has a “substantially similar” effect on the user (or is believed or represented by the defendant to have such a similar effect) -- the government must prove that the defendant knew that the substance constituted a controlled substance analogue, as held by the Second, Seventh, and Eighth Circuits, but rejected by the Fourth and Fifth Circuits.

Regular readers know that the Johnson case is getting a second argument this week after SCOTUS asked the parties to brief the constitutional issue it raised on its own after the first oral argument. And helpful Rory Little via SCOTUSblog provides these informative new posts with more on what can be expected in this week's arguments:

In addition, Garrett Epps has this extended new Atlantic piece discussing both Johnson and McFadden headlined "Too Vague to Be Constitutional: Two indecipherable criminal laws passed in the 1980s now face scrutiny at the Supreme Court."

The Supreme Court of Canada dealt the Harper government's tough-on-crime agenda a serious blow Tuesday by striking down a law requiring mandatory minimum sentences for crimes involving prohibited guns. The 6-3 ruling, penned by Chief Justice Beverley McLachlin, said the statute was unconstitutional as it upheld a 2013 Ontario Court of Appeal ruling that labelled the law cruel and unusual.

The ruling said the mandatory minimum sentence could ensnare people with "little or no moral fault" and who pose "little or no danger to the public." It cited as an example a person who inherits a firearm and does not immediately get a license for the weapon. "As the Court of Appeal concluded, there exists a 'cavernous disconnect' between the severity of the licensing-type offence and the mandatory minimum three-year term of imprisonment," McLachlin wrote for the majority.

Justice Minister Peter MacKay said in a statement that the government will review the decision to determine "next steps towards protecting Canadians from gun crime and ensuring that our laws remain responsive."...

Liberal Leader Justin Trudeau said there is a place for mandatory minimums in certain situations, noting that past Liberal governments have introduced them for "extreme crimes."

"But I think the over-use of them that the Supreme Court has highlighted, by this Conservative government, isn't necessarily doing a service to Canadians, both by not necessarily keeping us that much safer and also wasting large amount of taxpayers dollars on unnecessary court challenges," he told reporters in Oakville.

Keeping Canadians safe is cited by the government as the reason for its tough sentencing laws. McLachlin took aim at that justification in her ruling. "The government has not established that mandatory minimum terms of imprisonment act as a deterrent against gun-related crimes," she wrote. "Empirical evidence suggests that mandatory minimum sentences do not, in fact, deter crimes."

The court was deciding two appeals involving mandatory minimum sentences for gun crimes brought by the Ontario and federal attorneys general. The top court upheld the appeal court's quashing of both the three-year mandatory minimum for a first offence of possessing a loaded prohibited gun, as well as the five-year minimum for a second offence.

The Ontario and federal governments argued that the minimums do not breach the charter protection against cruel and unusual punishment. The new sentencing rules were enacted in 2008 as part of a sweeping omnibus bill introduced by the federal Conservatives.

Tuesday, April 14, 2015

Senator Charles Grassley is right now arguably the most significant and most important player in all on-going debates over federal sentencing and criminal justice reform. As Chair of the Senate Judiciary Committee, Senator Grassley can (and seems eager to) block the advancement of any and every federal criminal justice reform bill that he does not personally favor.

Consequently, even if the vast majority of Senators strongly support significant reforms to federal mandatory minimum sentencing provisions or to federal marijuana provisions, Senator Grassley can ensure— at least until 2017, and perhaps after that if the GOP retains control of the Senate — that federal reform bills do not even get a committee hearing, let alone a committee vote. Indeed, even if the vast majority of 300 million Americans, and even if the vast majority of the 718,215 Iowans who voted for Senator Grassley in 2010, would strongly favor a reform bill, the bill is likely DOA if Senator Grassley himself is not keen on the bill's particulars. Frustratingly, that is how our democracy now functions.

Bill Otis, whom I believe has Senator Grassley's ear and with whom he shares many sentencing views, predicted after the 2014 election that Senator Grassley's position as Judiciary Chair all but ensured that there would be almost no chance of significant federal sentencing reform until at least 2017. But this new piece in Roll Call, headlined "Grassley Resistant to Criminal Justice Overhaul, but Says He’s Willing to Talk," provides at least of glimmer of hope that this old Senate dog might be open to some new sentencing tricks. Here is an excerpt:

Grassley has made no bones about his passionate opposition to reducing mandatory minimum prison sentences, as proposed by Republican Sen. Mike Lee of Utah and Senate Minority Whip Richard J. Durbin of Illinois in the so-called Smarter Sentencing Act (S 1410). On the floor, Grassley has called rolling back such fixed sentences “dangerous,” “ill-conceived” and “indefensible.” Last year, he tried to gut a version of the bipartisan bill, which the Obama administration backs, with an amendment in committee.

Even so, Grassley told CQ Roll Call that he’s ready to start looking for common ground with the bill’s supporters. What’s been missing, he adds, is an invitation — from Obama, from the senators sponsoring the bill, from their staffs — from anyone willing to start a conversation. “First of all, nobody’s asked me even though for three months, including my speech last week, I said I would be glad to meet people about what we could possibly do because I’m open to some reform,” Grassley says.

Juvenile justice is among his top legislative priorities, and he has said he plans to co-sponsor a bill with Rhode Island Democrat Sheldon Whitehouse to reauthorize the 1974 Juvenile Justice and Delinquency Prevention Act. That law has not been reauthorized since 2002.

Grassley says he thinks there could be some reductions in mandatory minimums, but at the same time he wants to see increases in minimum sentences in other areas, such as child pornography and white-collar crime. He has also cited the need to prevent abuses in the forfeiture of civil assets, and to ensure that offenders receive fair representation. “It may just be time” to start criminal justice talks, Grassley says.

Long story short: anyone and everyone seriously interested in the passage of federal criminal justice reform anytime soon would be wise to invest considerable time and energy figuring out exactly what Senator Grassley is now willing to talk about. Notably, as stressed in this prior post, Senator Grassley recently penned a strong commentary extolling the importance of transparency and accountability in the federal criminal justice system, and I urge advocates to highlight for Senator Grassley and others how statutory mandatory minimums and other laws that empower and enhance federal prosecutorial overreaches significantly undermine these important goals.

Friday, April 10, 2015

As reported in this lengthy CNN piece, headlined "California judge faces recall try over sentence in child rape case," a judge's decision to impose only a 10-year prison term on a child rapist is causing a big stir in Los Angeles. Here are some of the details:

Three county supervisors in California announced Thursday a campaign to recall a judge who sentenced a man to 10 years in prison -- instead of the state mandatory minimum of 25 years -- for sodomizing a 3-year-old girl who is a relative.

At the center of the controversy is Orange County Judge M. Marc Kelly who, according to transcripts of a February court proceeding, was moved by the plea for leniency by the mother of the defendant. The judge expressed "some real concerns" about the state's minimum sentence of 25 years to life in prison for a child sodomy conviction and about "whether or not the punishment is disproportionate to the defendant's individual culpability in this particular case," according to a transcript of the February proceeding.

"I have not done this before, but I have concerns regarding or not this punishment as prescribed would fall into the arena of cruel and unusual punishment and have constitutional ramifications under the Eighth Amendment," the judge said in February, according to the transcript. "I know this is a very rare situation. It doesn't come up very often."... [An] account of [the April 3] sentencing quoted the judge as saying the mandatory sentence would be appropriate in most circumstances, but "in looking at the facts of ... (the) case, the manner in which this offense was committed is not typical of a predatory, violent brutal sodomy of a child case," Kelly said. The judge noted that the defendant "almost immediately" stopped and "realized the wrongfulness of his act," according to the newspaper.

"Although serious and despicable, this does not compare to a situation where a pedophilic child predator preys on an innocent child," the judge said, according to the newspaper. "There was no violence or callous disregard for (the victim's) well-being."

Three Orange County supervisors held a press conference Thursday to announce the campaign to collect 90,829 signatures needed to hold a recall election of Kelly. They were Orange County Board of Supervisors Chairman Todd Spitzer, County Supervisor and Vice Chairwoman Lisa Bartlett and Supervisor Shawn Nelson. ...

Spitzer said he was responding to "a huge community outcry" against the judge's sentence and his comments from the bench. "We as a community spoke on behalf of the victim today, the 3-year-old child," Spitzer said. "If it was a stranger, the mom would have thrown the book at the guy. The family cares about the perpetrator. It's a family member," Spitzer said. "The victim is related to the perpetrator, and that is what is so difficult here."

But Spitzer said the judge didn't follow state law. "We don't want a judge that legislates from the bench," Spitzer said. "It's just unfathomable that the judge would try to describe what is a brutal sodomy," Spitzer added. "Sodomy of a 3-year-old child is a brutal, violent act in itself."...

Orange County District Tony Rackauckas has called the sentence "illegal," and his office will appeal it, said his chief of staff, Susan Kang Schroeder. "We believe that his decision, his sentencing was illegal because there was a mandatory minimum set up by statute by the legislature," Schroeder said. "We're doing what the people of Orange County have asked us to do. We're going to fight through the courts."...

The June crime occurred in the garage of the family home in Santa Ana, where the defendant, then 19, was playing video games, prosecutors said. CNN is not identifying any family members so the victim can remain anonymous. The defendant also made the victim touch his penis, and he covered the girl's mouth while the mother called out to her, prosecutors said....

"As a 19-year-old, defendant appears to be mentally immature and sexually inexperienced. It is difficult to explain away defendant's actions, however, as sexual frustration," prosecutors said in court papers. "All things considered, defendant appeared to be a relatively normal 19-year-old, aside from the crime of which he is convicted." But the defendant "poses a great danger to society and probably will for the majority of his life," prosecutors added.

During the February court proceeding, a statement by the mother was read aloud to the court by her husband, according to the transcript. "While a mother's love is nothing less than unconditional, I am clearly aware of the gravity of my son's actions and the inevitable discipline that he must now confront," the mother's statement said. "It has been not only extremely difficult, but utterly devastating for me and my family to fully come to terms with the events that took place."

The mother said she hadn't had the strength or courage yet "to directly talk" to her son about the crime, but she said her son "has allowed God into his heart and has committed himself to God's guidance." Her son "is not a bad person," and she asked for forgiveness for his "transgressions and for the opportunity to have a second chance at liberty," the husband told the judge, summarizing his wife's statement.

The judge remarked about the rarity of the mother's plea. "I have never had a situation before like this where a mother is the mother of the victim of the crime and the mother of the defendant who was convicted of the crime," the judge said. "It's very rare in these situations. So I know it must be very difficult for you."

Defense attorney Erfan Puthawala said his client never denied his responsibility "for the heinous act he committed" and, in fact, cooperated with investigators. "He made a statement essentially incriminating himself, which he did not have to do," the attorney said.

"He expressed remorse for the actions he took and the mistake he made. He understands that a momentary lapse has had lifelong ramifications for his sister the victim, for his family, and for himself," Puthawala added. "It is important to note that (my client) is not a pedophile, he is not a sexual deviant, he is not a sexually violent predator, and he poses a low risk of recidivism." Those findings came from an independently appointed psychologist who wrote a report to assist the judge in sentencing, Puthawala said.

Intriguingly, the judge at the center of this controversial sentencing was a senior local prosecutors for more than a decade before he became a member of the state judiciary. Perhaps because of that history, this judge perhaps though the prosecutor who charged this case likely had some discretion not to charge an offense that carried a 25-year mandatory minimum and thus perhaps he thought he should have some discretion not to sentence based on the mandatory minimum. Based on this case description, too, I wonder if this judge found that some of the Eighth Amendment themes stressed by the Supreme Court in Graham and Miller had some applicability in this setting because the defendant was only 19.